# + 2

(,1 1/,1(

Citation: 67 Fed. Reg. 48718 2002

Content downloaded/printed from HeinOnline (http://heinonline.org) Tue Nov 6 14:07:26 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.

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

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52 [AZ092-002; FRL-7141-3]
Approval and Promulgation of Implementation Plans; ArizonaMaricopa County PM-10 Nonattainment Area; Serious Area Plan for Attainment ofthe PM-10 Standards
AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule.

SUMMARY: EPA is approving the serious

area particulate matter (PM-10)plan for the Maricopa County portion ofthe metropolitan Phoenix (Arizona)PM-10 nonattainment area. We are also granting Arizona's request to extend the Clean Air Act deadline for attaining the annual and 24-hour PM-10 standards in the area from 2001 to 2006. Finally, we

are approving Maricopa County Environmental Services Department's fugitive dust rules, Maricopa County's Residential Woodburning Restrictions Ordinance, and commitments by Maricopa Countyjurisdictions to implement PM-10 controls. EFFECTIVE DATE: August 26, 2002.
FOR FURTHER INFORMATION CONTACT: Frances Wicher, Office ofAir Planning (AIR-2),U.S. Environmental Protection Agency, Region 9, 75 Hawthorne Street, SanFrancisco, California 94105. (415) 947-4155, email: wicher.frances@epa.gov.

This document andthe Technical Support Document are also available as electronic files on EPA's Region 9 Web Page at http://www.epa.gov/region9l/ air.
SUPPLEMENTARY INFORMATION: Throughout this document "we," "us," and "our" means EPA. This supplementary information is organized

as follows:

I. Summary of Today's Actions I. The Serious Area PM-10 Plan for the Phoenix Area I1. Proposals for and Information Related to Today's Actions A. The Proposals for Today's Actions B. Already-Approved Elements of the

Phoenix Serious Area PM-10 Plan C.Effect ofToday'sActions on the 1998

Federal PM-10 Plan forthe Phoenix Area D.Clean AirAct Sanctions in the Phoenix

Area E. EPA's Policies on Approving Serious

Area PM- 10 Plans and Granting Attainment Date Extensions IV. Response to Comments on the Proposed Actions A. Comments on EPA's Policy on

Approving Serious Area PM-10 Plans and Granting Attainment Date Extensions B. Comments on EPA's Detailed Evaluation

ofthe Phoenix Serious AreaPM-10 Plan V. FinalActions

A. Approval ofthe Serious AreaPlan B.Extension ofthe Attainment Date C.Approvals ofRules and Commitments D.Correction ofPrevious SIP Disapprovals VI. Administrative Requirements

I. Summary ofToday'sActions

We are approving the serious area state implementation plan (SIP) for attainment ofthe annual and 24-hour PM-10 standards in the metropolitan Phoenix (Maricopa County), Arizona,

area. This action is based on our determination that this plan complies with the Clean Air Act's (CAA) requirements for attainingthe PM-10 standards in serious PM-10 nonattainment areas such as the metropolitan Phoenix area. Specifically, we are approving the following elements ofthe plan as they address both the 24-hour and annual PM-10 standards: * The baseyear emissions inventory ofPM-10 sources;

* The demonstration thatthe plan provides for implementation of reasonably available control measures (RACM) andbest available control

measures (BACM)for all source categories that contribute significantly
to PM-10 standard violations; * The demonstrations that attainment by the CAA deadline ofDecember 31, 2001 isimpracticable;

* The demonstrations that attainment will occur bythe most expeditious alternative date practicable, in this case, December 31, 2006; * The demonstration thatthe plan provides for reasonable further progress and quantitative milestones;

* The demonstration thatthe plan includes to our satisfaction the most stringent measures found in the implementation plan of another state or

are achieved in practice in another state and can feasibly be implemented in the
area;

* The demonstration that major

sources ofPM-10 precursors such as nitrogen oxides and sulfur dioxide do
not contribute significantly to violations ofthe PM-10 standards;

* Contingency measures; and * The transportation conformity mobile source emissions budget.

We are also approving Maricopa County's fugitive dust rules, Rules 310 and 310.01, and itsresidential woodburning restriction ordinance as well as commitments bythe local jurisdictions in the Phoenix area to implement control measures.

Finally, we are granting Arizona's request to extend the attainment date for both the annual and 24-hour PM-10 standards from December 31, 2001 to December 31, 2006.

With today's action, EPA has now approved all elements ofthe serious

area PM-10 plan for the Phoenix area. Today's final approvals also correct disapprovals ofprevious Phoenix PM10 plans that resulted inthe imposition ofone CAA sanction in the Phoenix area and a clock running forthe imposition ofanother. With these approvals, the sanction is lifted and the clock stopped.

This preamble summarizes our actions onthe Phoenix serious area plan, gives somebackground to this action, and provides responses to the
most significant comments we received

on the proposals for thisfinal action. Wehave not repeated the concise evaluation ofthe planthat we provided in the two proposals for today's action. Werefer the reader to these proposals for this evaluation. See the annual standard proposal at 65 FR 19964 (April 13, 2000) and the 24-hour standard proposal at 66 FR 50252 (October2, 2001). Our complete evaluation canbe foundin our technical support document (EPA TSD) that accompanies this final action. The EPATSD also includes our full responses to all
comments received on both proposals. The EPATSD can be downloaded from

our website or obtained by calling or writing the contact person listed above.

II. The Serious Area PM-10 Plan forthe Phoenix Area

Arizona has made several submittals
to address the CAA requirements for serious PM-10 nonattainment area plans in the Phoenix area. These submittals include the 1997 Microscale plan,' the 1997 BACM submittal,2 the 2000 Revised Maricopa Association of Governments (MAG)plan,? the 2001 Best Management Practices (BMP) submittal (BMP TSD),4 and anumber of

'PlanforAttainmentofthe 24-hourPM-10 Standard-Maricopa CountyPM-10 Nonattainment Area, Arizona Department ofEnvironmental Quality (ADEQ), May, 1997, submitted May 9, 1997, approved inpart and disapproved in parton August 3, 1997 (62 FR 41856).

2Serious Area CommittedParticulateControl
Measures forPM-10 for theMaricopaCounty Nonattainment Area andSupport Technical Analysis,MAG, December 1997, submitted December 11, 1997.

3RevisedMaricopaAssociation ofGovernments 1999SeriousAreaParticulate Plan forPM- 0for theMaricopaCountyNonattainment Area, February 2000, submitted February 16, 2000. On January 8, 2002, Arizona submitted revisions to the Maricopa County's commitments to improve its fugitive dust rule which were in this plan.

4 Maricopa CountyPM-10 SeriousArea State ImplementationPlanRevision,Agricultural Best ManagementPractices (BMP),ADEQ, June 2000, submitted on June 13, 2001. 

### 48718

HeinOnline -- 67 Fed. Reg. 48718 2002

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

rules. 5These submittals collectively comprise the full serious area PM-10 plan for the Phoenix area.

The MAGplan is the primary document for the serious area plan. It contains the base year inventory, the BACM demonstrations for all significant

source categories (except agriculture) for both standards, the demonstration that attainment ofboth standards by 2001 is impracticable, the demonstration that attainment ofthe annual standard and the 24-hour standard (atall but four sites addressed by the microscale plan) will occur as expeditiously as practicable, the reasonable further progress (RFP) demonstration and quantitative milestones for the annual standard, contingency measures for the annual standard, the transportation conformity budget, and the request and supporting documentation-including the most stringent measure analysis (except for agriculture)-for an attainment date extension forboth standards under CAA section 188(e).

The BMP TSD updates the MAG plan
to reflect the State's May, 2000 adoption ofthe agricultural general permit rule to control PM-10 from agricultural sources in Maricopa County. Itincludes a background document which provides the BACM and most stringent measure demonstrations for agricultural sources for both standards, the final demonstration of attainment and RFP for the 24-hour standard at two monitoring sites, quantitative milestones for the 24-hour standard, and revisions to the contingency measure provisions for both standards. It also includes documentation quantifying emission reductions from the agricultural general permit rule and documentation related to implementing this rule. The BMP TSD was prepared by ADEQ.

The 1997 BACM submittal contains the initial commitments by the cities and towns in the Maricopa County portion ofthe Phoenix nonattainment

area to implement BACM within their jurisdictions. These commitments were resubmitted in the revised MAG plan.

The Microscale plan is a serious area PM-10 plan that includes BACM, RFP, and attainment demonstrations for the

5These include the revised Maricopa County Environmental Services Department (MCESD) Rule 310, Fugitive Dust Sources (adopted February 16, 2000) and Rule 310.01, Fugitive Dust from Open Areas, Vacant Lots, Unpaved Parking Lots, and Unpaved Roadways (adopted February 16, 2000), both submitted on March 2, 2000; the revised Maricopa County Residential Woodburning Restrictions Ordinance (adopted November 17, 1999) submitted on January 28, 2000; and the Agricultural BMP General Permit Rule submitted on July 11, 2000, approved October 11 2001 (66 FR 51869). 24-hour PM-10 standard atfour Phoenix area monitoring sites: Salt River, Maryvale, Gilbert, andWest Chandler. It was prepared and submittedby ADEQin 1997 as a component ofthe overall serious area PM-10 plan for the Phoenix area.6

III. Proposalsfor andInformation Related toToday's Actions

A. The Proposals forToday'sActions

Two proposals preceeded today's final action. The first proposal was published onApril 13, 2000 (65 FR 19964) and addresses the Phoenix serious area plan's provisions for attaining the annual standard. The initial comment period for this proposal

was 60 days but was extended twice and finally closed on July 27, 2000. We received 14 comments onthis proposal from both public and private groups and from numerous private citizens.

The second proposal was published

on October 2, 2001 (66 FR 50252) and addresses the Phoenix serious area plan's provisions for attaining the 24- hour standard and contingency

measures for both PM-10 standards. In this second proposal, we alsorevised andreproposed several findings from the annual standard notice. These reproposals were necessary because of SIP submittals made by Arizona after the April 2000 proposal. The 30-day
comment period for this proposal ended

onNovember 1, 2001. We received one comment letter.

B.Already-ApprovedElementsofthe PhoenixSeriousAreaPM-I0Plan

Two important elements ofthe metropolitan Phoenix serious area PM10 plan have already been approved. These elements were submitted as either part ofthe Microscale plan or the BMP general permit rule and its TSD.

We approved the Microscale plan in part and disapproved the plan in part on August 4, 1997. We approved provisions for implementing BACM for 3ofthe 8

source categories found to be significant contributors to 24-hour exceedances in the Phoenix area and disapproved them for 5others. We also approved the attainment andRFP demonstrations for the Salt River and Maryvale sites because the Mircoscale plan demonstrated expeditious attainment at these sitesbut disapproved these demonstrations for the West Chandler and Gilbert sitesbecause the plan did

6A complete history ofthe Microscale plan, including the reasons forits development, can be found in the proposal and final actions for that plan and in proposal for the 24-hour standard. See 62 FR
31025 (June 6, 1997), 62 FR 41856 (August 4, 1997) and the 24-hour standard proposal at 50254. not demonstrate attainment at them. Except for our findings related to the implementation ofBACM, we have not reevaluated and are not approving again those 24-hour provisions already approved as part ofour actions on the Microscale plan.7

On October 11, 2001, we approved the State's agricultural BMP general permit rule and foundthat itprovided for the implementation ofRACM forthe agriculture source category. See 66 FR 51869. We are today finding that the rule also provides for the implementation ofBACM and meets the
most stringent measure requirement in CAA section 188(e). These latter findings are in addition to and not in substitution for the October 11, 2001 RACM finding.

With today's action and these previous approvals, we have now approved all elements ofthe Phoenix serious area PM-10 plan.

C.Effect ofToday'sActions on the 1998 FederalPM-10Plan forthe Phoenix Area
On August 3, 1998, we promulgated a moderate area PM-10 federal implementation plan (FIP)for the Phoenix area. In the FIP, we included a rule for controlling fugitive dust from
vacant lots, unpaved parking lots, and unpaved roads. See 40 CFR 52.128 (modified,December 21, 1999). We also included a commitment to adopt and implement RACM for agricultural

source categories. See 40 CFR 52.127 as published at 63 FR 41326, 41350 (August 3, 1998) (withdrawn at 64 FR 34726 (June 29, 1999)). With the Federal fugitive dust rule and commitment and already approved State and local controls, we demonstrated that the Phoenix area had in place RACM on all significant source categories, that the

area would make reasonable further
progress toward attainment but that attainment by 2001 was impracticable. See 63 FR 41326.

OnJune 29, 1999, we replaced the federal commitment to develop agricultural controls in the FIP with a

7According tothe approved serious area plan attainment demonstration intheMicroscale plan, the Salt River site should not have violated the 24- hour PM-10 standard afterMay, 1998. The site, however,continues to violatethe standard. Because there is already an approved serious area plan attainment demonstration, theremedy under the CAAfor correcting this demonstration is for EPA toissue a formalrequest tothe State toreviseit SIP pursuantto section 110(k)(5), aprocess known as
a"SIP call." We willbe proposing that SIPcall

soon. However,because the elements ofthe Phoenix serious area planthat we are approving today do notaddress the attainment ofthe 24-hour standard atthe Salt River site,the issues with the site's attainment demonstration do not affect today's action. 

### 48719

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

State commitment to adoptbest management practices for the agricultural sources. 64 FR 34726.

Today's actions do not withdraw or otherwise modify the demonstrations in the FIP orthe federal fugitive dust rule.

D. CleanAir Act Sanctions in the Phoenix Area

In the 1998 FIP, we also disapproved the RACM and attainment demonstrations for the annual PM-10 standard in the 1991 MAG moderate

area PM-10 plan. See 63 FR 41326 (August 3, 1998, effective September 2, 1998). Under CAA section 179(a), once

we disapprove a SIP provision because it fails to meet a CAArequirement, a State has 18 months from the effective date ofthe disapproval to correct the deficiencybefore the first oftwo sanctions goes into place. Ifthe state still has not corrected the deficiency within 24 months ofthe effective date ofthe disapproval, the second sanction
goes into place.8

On March 2, 2000, before Arizona could submit and we could act to approve substitute RACM and attainment demonstrations, the 18- month clock expired and the 2:1 offset sanction went into place in the Phoenix

area. The second clock for the highway funding limitations was set to expire on September 2, 2000.

Under section 179(a) and our sanctions regulations at 40 CFR 52.31(d)(1), we must approve a SIP revision that corrects the deficiencies to permanently end the sanctions clocks and lift any imposed sanctions. However, we may temporarily stay the clocks and any imposed sanctions ifwe have proposed to approve a SIP revision that corrects the deficiencies and have issued an interim final determination that the State has corrected the deficiencies. 40 CFR 52.31(d)(2)(i).

We proposed to approve the RACM and attainment demonstrations for the annual standard on April 13, 2000. 65 FR 19964. In arule published concurrently with that proposal, we issued an interim final determination that stayed both the offset sanction and the clock running on the highway sanctions. 65 FR 19992.

With today's action, we are fully approving the State's substitute RACM and attainment demonstrations for the

8The two CAA sanctions area limitation on certain highway approvals and funding and an increase inthe emissions offset ratio to 2to 1 for
any major new stationary source or major modification. See CAA section 179(b). Our sanctions regulations provide that the first sanction
to be imposed is the offset ratio unless we have established at the time ofthe disapproval that the highway sanction will befirst. 40 CFR52.31(d). annual standard. These full approvals
correct the deficiencies thatresulted in the disapproval andpermanently end the offset sanction and stop the clock for the highway sanctions.

The serious area plan for the Phoenix

area was due onDecember 10, 1997; however, Arizona submitted only a partial plan. OnFebruary 6, 1998, we made afinding thatthe State had failed
to submit a required SIP (published on February 25, 1998 at 63 FR 9423). This finding also started sanctions clocks and

atwo-year clock under CAA section 110(c) for EPA to promulgate a substitute federal implementation plan ifthe State did not have a fully approved one.

OnJuly 8, 1999, Arizona submitted the full serious area plan, and on August 4, 1999, we found theplan complete. This finding stopped the sanction clocks for failure to submit; however, it did not stopped the FIP clock. Under section 110(c), the FIP clock continues until we approve the full serious area plan. Today's action approves the plan and ends our obligation topromulgate a serious area PM-10 FIP for the Phoenix

area.
E.EPA'sPoliciesonApprovingSerious AreaPM-I0PlansandGranting AttainmentDateExtension

We have issued aGeneral Preamble, 57 FR 13498 (April 16, 1992) and 57 FR 18070 (April 28, 1992), andAddendum
to the General Preamble ("Addendum"), 59 FR 41998 (August 16, 1994), describing our preliminary views on how we intend toreview SIPs submitted
to meet the Clean Air Act's requirements for PM-10 plans. The General Preamble mainly addresses the requirements for moderate areas and the Addendum, the requirements for serious

areas.

In the proposal for the 24-hour standard, we also provided our preliminary interpretation ofand policy

ongranting an extension ofthe attainment date under CAA section 188(e). We are finalizing this extension policy today only asit relates specifically to our action onthe attainment date extension requested by the State ofArizona for the Phoenix

area.
IV. Response to Comments on the Proposed Actions

The following are our responses to the
most significant comments thatwe received on the proposals for today's actions. In section 7ofthe EPA TSD, we provide more detailedresponses to these comments aswell as responses to all comments received. A copy ofthe EPA TSD may be downloaded from our website or obtained bywriting or calling the contact listed above.

A. Commentson EPA'sPolicies for ApprovingSeriousAreaPM-I0Plans andGranting AttainmentDate Extensions
Comment:EPAinterprets the CAA to notrequire a state to apply BACM to any source or source category that it has demonstrated to be de minimis. See 59 FR 41998, 42011 (August16, 1994). In its July 2000 comments onthe annual standard proposal, ACLPI disagrees that EPA can exempt de minimis sources fromthe Act's BACM requirement. ACLPI argues thatthere are no exceptions to the Act's requirement that serious area plans include "provisions
to assure that the best available control

measures for the control ofPM-10 shall be implemented." ACLPI incorporates by reference its arguments in its Brief for the Petitioners in Oberv. Whitman (9th Cir., No. 98-71158) (OberH)at pp. 21-19, noting that although OberII involves a challenge to our exemption of de minimis sources from the RACM requirement, the same reasoning applies
to invalidate the BACM exemption as well.

Response: OberIIwas a challenge to

our 1998 PM-10 moderate area FIP for the Phoenix area. In the FIP, we exempted from the RACM requirement,

source categories with de minimis impacts on PM-10 levels. We established a de minimis threshold of 1 gg/m\3\ for the annual standard and 5 gg/m\3\ for the 24-hour standard, initially taking these thresholds from the new source review (NSR) program for attainment areas. We showed that these were the correct thresholds for determining which source categories

were de minimis for the RACM requirement by showing thatthe application ofRACM on the de minimis

source categories would notmake the difference between attainment and nonattainment by the applicable attainment deadline. See 63 FR 41326, 41330 (August 3, 1998). In Ober II, ACLPI challenged our ability to exempt de minimis source categories from the RACM requirement and the specific thresholds that we used.

In March, 2001 (wellafter the close of the comment period onthe annual standard proposal), the 9thCircuit issued its opinion in OberII. Oberv. Whitman, 243 F.3d 1190 (9th Cir. 2001). The court held that we have the power to make de minimis exemptions to control requirements under the Clean AirAct andthat our use ofthe de minimis levels from the NSR program is appropriate. In addition, the Court determined that itis appropriate for us 

### 48720

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

to use, as a criterion for identifying de minimis sources, whether controls on the sources would result in attainment by the attainment deadline. OberIIat 1198

In finding thatEPA had the authority
to exempt de minimis source categories ofPM-10 from CAA control requirements, the Court wrote:

Courts have refused to allow deminimis exemptions where the statutorylanguage does not allow it. * * * There is no explicit provision inthe Clean Air Act prohibiting the exemption from controls for deminimis

sources ofPM-10 pollution. Noristhe statutory language uncompromisingly rigid. The Act provides that a planmust include "reasonably" available control measures to bring thearea intoattainment unless attainment is "impracticable." Those terms allow forthe exercise ofagencyjudgment.

* * * We conclude that EPA, in discharging its dutyto enforce the Act, is permitted under [Chevron, U.S.A., Inc.v. Natural ResourcesDefense Council,Inc., 467U.S. 837 (1984)] to exempt de minimis sources of PM-10 from pollution controls.
OberIIat 1194 (internal cites and quotes omitted).

The Court's reasoning is equally applicable tothe BACM requirement. Like the RACM requirement, there is no explicit provision in the Act prohibiting the exemption from the BACM requirement for de minimis sources of PM-10 pollution. Nor is the language in section 189(b)(1)(B) requiring the implementation ofBACM "uncompromisingly rigid." Like RACM, the Act and EPApolicy provide that a PM-10 plan must include the "best" available control measures tobring the

area into attainment unless attainment is "impracticable." The term "best"-no less than the term "reasonably"-allows for the exercise ofagency judgment.

In OberI, the Court also upheld the procedures and criteria we used to determine what constituted a de minimis source or source category for RACM. OberIIat 1198. We have applied exactly the same procedures and criteria for BACM. ForBACM, we proposed the

same NSR thresholds as a starting point for determining what constitutes a de minimis source category. See 24-hour standard proposal at 50281. We also required the State to demonstrate that its identified de minimis sources are in fact de minimis by showing that controls onthem would not make the difference between attainment and nonattainment by the applicable deadline. See 24-hour standard proposal
at 50281.

Finally, we note thatwe invoke a de minimis exemption from the Act's general but open-ended control requirements like RACM, BACM, and MSM asa means ofensuring that states focus their always limited resources on the controls mostlikely to result in real air quality benefits. Itis more likely to harm air quality than to help itifthese limited resources are diverted away from more substantive measures into the adoption and implementation of

measures with trivial impacts.

Nowhere is the need to concentrate

resources on the most significant

sources more necessary then in large urban areas dominated by PM-10 fugitive dust sources, such as the metropolitan Phoenix area. Adequate controls in these types of areas require
very large investments ofboth financial andhuman resources because ofthe number of sources and the type of needed controls. 9As the court has recognized in AlabamaPowerCo. v. Costle,636 F.2d 323, 360 (D.C.Cir. 1979), "[c]ourts shouldbe reluctant to apply the literal terms ofa statute to mandate pointless expenditures of effort. * * * The ability * * * to exempt de minimis situations from a statutory command isnot an ability to depart from the statute, but rather atool
to be used in implementing the legislative design." Cited in OberIIat 1194.

Comment:In its July 2000 comments

onthe annual standard proposal, ACLPI argues that our de minimis exception violates the Act's central mandate for attainment ofthe PM-10 standards by December 31, 2001 or as expeditiously

aspossible thereafter because itallows

us and the states to eschew otherwise available control measures based on an arbitrary de minimis test even ifthe aggregate effect ofimplementing controls on all "de minimis" sources would hasten attainment. It further
comments that even ifthe de minimis exception is allowed, the thresholds set by EPA are arbitrary because they were not based on actual PM-10 conditions in the nonattainment area, but on levels borrowed from the wholly unrelated

new source review (NSR)program.

Response:ACLPI misstates the scope ofthe BACM de minimis exemption. We donot consider a source category or groups of source categories to be de minimis ifapplying BACM to it or them

9There are literally thousands ofsources subject
to fugitive dust controls in the Phoenix area, including constructions sites, agricultural fields,
vacant lots, unpaved roads, and paved roads. For example, MCESD issued 2500 construction permits in 1999; we mailed 50,000 letters to owners of
vacant lots as part ofour 1999 outreach on the PM10FIP. Effective fugitive dustcontrol from many of these sources requires either an ongoing and extensive compliance and enforcement presence or large capital expenditures (e.g., paving unpaved roads, purchasing and operating PM-10 street sweepers). would meaningfully expedite attainment in areas demonstrating attainment by December 31, 2001 or would make the difference between attainment and nonattainment by December 31, 2001 in areas requesting

an extension. See 24-hour standard proposal at 50281 andAddendum at 42011.

Under our de minimis policy, whether the NSR thresholds are appropriate for an area depends onthe specific facts ofthat area'sPM-10 nonattainment problem, that is, it depends on the actual PM-10 conditions in the nonattainment area. We donot accept the NSR thresholds as the correct de minimis thresholds without first requiring a conclusive showing that they do not adversely affect the area's ability to show expeditious attainment. See Addendum
at42011.

We usedthese NSR thresholds in our 1998 FIP. ACLPIraised the same objections to theiruse there for the RACM requirement as it does here for the BACM requirement. OberIIat 1196. The Ninth Circuit in reviewing the FIP foundthat itwas permissible for us to adopt the PM-10 de minimis thresholds already in place in the new source review program to identify de minimis

sources for the RACM requirement. OberIIat 1196. Ourreasoning for applying those thresholds for BACM is the same as our reasoning for applying them for RACM; therefore, we believe thatthe NSR thresholds are an appropriate starting point for determining which source categories are significant andwhich are de minimis for the purposes of applying BACM.

Comment:Under the section 188(e) extension provisions, a state must show that ithas complied with all requirements and commitments in its implementation plan. We interpret this requirement to apply only to the control

measures inthe state's previously submitted PM-10 implementation plans. See 24-hour standard proposal at 50282. ACLPI argues thatin addition to fullyimplementing the control

measures inthe SIP revisions that ithas submitted, a state must also show that ithas implemented other provisions of its SIP. ACLPI also comments that EPA's attemptto limit thisrequirement to PM10 commitments has no basis in the Act.

Response:Webelieve thatthis criterion's purpose is to assure that a state is notrewarded with additional timeto attain the PM-10 standards ifit has not implemented earlier commitments and requirements to reduce PM-10 levels. Giventhis purpose, the focus ofthe test to determine ifa state has metthis 

### 48721

HeinOnline -- 67 Fed. Reg. 48721 2002

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

criterion shouldbe on the implementation ofPM-10 emission reducing control measures rather then

onthe implementation ofprograms, such as monitoring and permitting, that make up the overall air quality program's infrastructure but are not emission reducing measures themselves.

Limiting the section 188(e) review to just the PM-10 implementation plan is firmly based on the structure, purpose and language ofthe Act. The attainment date extension provisions are located in title I,part D, subpart 4 "Additional Provisions for Particulate Matter Nonattainment Areas." Hence, any reference to theimplementation plan within this subpart is to the PM-10 implementation plan, absent specific language to the contrary. The criterion "the State has complied with all requirements and commitments pertaining to that area in the implementation plan" in section 188(e) (emphasis added) contains no language that implies a reference to all of an area's implementation plans. Moreover, section 188(e) addresses setting the most expeditious attainment date for meeting the PM-10 air quality standards. There is at best a tenuous and strained connection between the implementation
status ofplans for attaining other air quality standards (e.g., ozone or carbon monoxide) and the appropriate and
most expeditious date for attaining the PM-10 standard.

The language in section 188(e) is almostidentical to the language in section 188(d)that allows a one-year extension ofthe moderate area attainment date if,in part, "the State has complied with all requirements and commitments pertaining to the area in the applicable implementation plan." In interpreting and applying section 188(d), we have always considered "the applicable implementation plan" in question to be the State's SIP for PM10. SeeMemorandum,Sally L. Shaver, OAQPS, to Regional Air Directors, "Criteria for Granting 1-Year Extensions ofModerate Area Attainment Dates, Making Attainment Determinations, and Reporting on Quantitative Milestones," November 14, 1994. See also, 66 FR 32752, 32754 (June 18, 2001) (Attainment date extensions for Utah's PM-10 nonattainment areas). Comment:EPA interprets the CAAto allow states to exempt from the most stringent measures requirement in section 188(e) any source or source category that ithas demonstrated tobe de minimis. 24-hour standard proposal
at 50283. ACLPI disagrees that EPA can exempt de minimis sources ofPM-10 from the Act's MSM requirement, arguing thatthe Act requires areas seeking an extension ofthe serious area PM-10 attainment deadline to demonstrate thattheir plans include the
most stringent measures that are included in the implementation plan of any State or achieved in practice in any State, and can feasibly be implemented in the area," and thatthere is no de minimis exception to this explicit mandate.

Response:As stated above in response to a similar commentregarding the exemption ofde minimis sources from the BACM requirement, we believe the OberIICourt's reasoning in upholding that exemption for the RACM requirement is also applicable to the MSM requirement. Again, we invoke a de minimis exemption from the Act's general but open-ended control requirements like RACM, BACM, and MSM asa means to ensure that states focus their always limited resources on the controls mostlikely to result in real air quality benefits.

Like the RACM requirement, there is

no explicitprovision in the Act prohibiting a de minimis source category exemption from the MSM requirement. Nor is the language in section 188(e) "uncompromisingly rigid." In fact, the phrase-"to the satisfaction ofthe Administrator"-in the MSM provision specifically calls for the Agency to exercise itsjudgement in deciding how exactingly to apply the requirement. See OberIIat 1194.

In our policy onthe MSM requirement, we areusing the same principles for determining when a

source is considered de minimis under the MSM requirement that we used for the RACM requirement upheld bythe OberIICourt. In doing so, we have carefully constructed the de minimis exemption for the MSM requirement to prevent states from eliminating any controls on sources or source categories that alone or together would result in

more expeditious attainment ofthe PM10 standards. See annual standard proposal at 19967 and 24-hour standard proposal at 50583. We note that the Phoenix serious area plan did not reject
any potential MSM on de minimis grounds. Comment:ACLPI argues thatEPA's proposed de minimis exception violates the Act's requirement that states seeking

an extension demonstrate attainment by the most expeditious alternative date practicable because it allows EPA and the states to reject otherwise available control measures based on an arbitrary de minimis test even ifthe aggregate effect ofimplementing MSM on all de minimis sources would hasten attainment. It also argues EPA's proposal to determine an appropriate de minimis level by determining whether applying MSM to proposed de minimis

source categories would "meaningfully hasten attainment" isvague and fails to comport with the Act.

Response:ACLPI misstates the scope ofthe MSM de minimis exemption. We do not consider a source category or groups of source categories to be de minimis ifapplying MSM to it or to them would hasten attainment. We statedthis clearly in both theproposal for the annual standard provisions and for the 24-hour standard provisions: Annual standard proposal at 19969; 24- hour standard proposal at 50583.

In OberI, the Court found: Usingthe [attainment] deadline to determine whether controls mustbe imposed makes sense. The deadline isnot an arbitrary dateunrelated to airquality concerns. * * * Inthis case,the [FIP] concludes thatthe deadlinewill notbemet even ifthese small

sources ofPM-10were controlled. Under those circumstances, it isreasonable to decline to control the de minimis sources of pollution.

OberIIat 1198.

In interpreting the MSM requirement
to allow exemptions on de minimis grounds, we are alsousing the applicable attainment date to determine whether controls should be imposed. At the time a state submits its application for an attainment extension, (including the showing that itsplan includes MSM), itmust also submit a demonstration that attainment will

occur by the "most expeditious alternative date practicable." See CAA section 188(e). Ifit can be shown that including a certain set ofpotential MSM would notresult in more expeditious attainment, then it is consistent with the Act to not require their inclusion as a condition of approval.

What constitutes "meaningfully hastening attainment" depends on the actual PM-10 conditions in the nonattainment area and the particular PM-10 standard under consideration. 10 Because ofthis dependence, we cannot in policy specify a time period that is appropriate in all situations. We can propose the appropriate time period onlywithin the context of acting on a specific extension request. For today's rulemaking, the plan did not invoke a de minimis exemption for evaluating MSM; therefore, we did not need to propose the time period we would

1lThis is similar to the de minimis thresholds
which we also cannot specify in advance because theytoo must be setbased on the actual PM-10 conditions inthe nonattainment area andthe particular PM-10 standard under the consideration. See Addendum at 42011. 

### 48722

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

consider meaningful for evaluating its de minimis exemption.

Comment:Under our policy on MSM,

a state may reject a measure as infeasible for the area on economic grounds. See 24-hour standard proposal
at 50283. ACLPI disagrees that a state

cantake economic considerations into
account when determining the feasibility ofMSM for the purposes of the MSM demonstration required under section 188(e). ACLPI argues that the Act only allows for the rejections ofan MSM ifitcannot feasibly be implemented in the area and any
measure that is included in another SIP

orachieved in practice in another state isby definition economically feasible because it is capable ofbeing done or carried out ifsufficient resources are devoted to it. ACLPI also argues that onlyits interpretation ofMSM fits within the Act's strategy ofoffsetting longer attainment time frames with

more stringent control requirements and that by allowing for therejection of MSM based on cost, EPAhas made MSM virtually indistinguishable from BACM.

Response:We believe that Congress very clearly intended thatthe phrase "feasible in an area" in section 188(e) to include economic considerations. Section 188(e) lists five criteria that we may consider in determining whether to grant an extension and the length ofan extension, the last ofwhich is "the technological andeconomicfeasibility ofvarious control measures." Emphasis added. The term "various control measures" clearly refers back, in part, to the requirement in the first part of section 188(e) that contains the requirement that theplan include "the
most stringent measures that * * * can feasibly be implemented in the area."

By allowing us to consider the economic feasibility ofmeasures in judging whether to grant an extension andhow long an extension to grant, Congress necessarily also allowed states to consider economic feasibility in demonstrating the need for an extension ofa given length. Ifsection 188(e) compelled states to adopt all MSM that

were technologically feasible no matter their cost, then there would be no economic feasibility issues for us to review in exercising our discretion to grant an extension. ACLPI's position would read the very explicit criterionthe technological and economic feasibility ofvarious control measuresoutof section 188(e). A statute should
not be interpreted torender any provision ofthat statute meaningless. SeeNorthwestForest&Resourcev. Glickman, 82 F.3d 825, 834 (9thCir. 1996). See also Gustafsonv.Alloyd Co., 115 S. Ct. 1061, 1067 (1995) (noAct of Congress should "be read as aseries of unrelated and isolated provisions."); Departmentof Revenue ofOregonv. ACFIndustries,114 S. Ct. 843, 848 (1994) ("a statute should be interpreted

so as not to render one part inoperative") (quotation omitted).

We agree that the Act's general strategy isto offset longer attainment time frames with more stringent control requirements. We do not agree thatthe MSM requirement in section 188(e) is the primary mechanism that assures that increasingly stringent control requirements are adopted in areas requesting an extension. In fact, the
most stringent control measure provision in section 188(e) will not necessarily result in the adoption ofany additional controlmeasures above and beyond those already adopted bythe
state toprovide for BACM and expeditious attainment.

The MSM provision iswritten to

assure that astate consider the most effective controls from elsewhere in the country for implementation in the area requesting an attainment date extension. The results ofthe analysis are completely dependent onhow well other areas have controlled their PM-10

sources. Ifother areas have not controlled aparticular source category well, then the resulting MSM for that

source category will not be the more effective level ofcontrol than what is actually feasible for the area. The MSM provision, however, does not require a state to determine ifthe feasibility of controlling a source category at a level greater than the most stringent level from another area. In other words, it does not require states to determine the maximum level ofcontrol that couldbe applied to a source category given local conditions and the additional implementation time afforded by an extension.

In considering the MSM provision, there is atendency to assume that there

are always better controls elsewhere than there are in the local area. This assumption isunwarranted, especially for an area that has already gone through a systematic process of identifying and adopting BACM for their significant sources. These areas are likely to have already evaluated the best controls from other areas (as Arizona did, see MAGplan, Chapter 5) and either adopted them asBACM or rejected them as not feasible for their

area. As a result,the likelihood of uncovering substantial new controls during aMSM evaluation is low.

More important than the MSM provision for assuring adoption of additional controls is the requirement in CAA sections 189(b)(1)(A)(ii) and 188(e) thatthe PM-10 plan demonstrate attainment by the most expeditious alternative date practicable but no later thanDecember 31, 2006. The SIP revision containing this demonstration
must accompany any request for extension ofthe attainment date under section 188(e). Because we are required
to grantthe shortest possible extension,

a state must demonstrate that ithas adopted the set ofcontrolmeasures that will resultin the most expeditious date practicable for attainment. This requirement may mean that a state must adopt controls that go beyond the most stringent measures adopted or implemented elsewhere.

Comment:ACLPI disagrees with EPA'sinterpretation ofthe phrase "to the satisfaction ofthe Administrator" in section 188(e). Specifically, ACLPI rejects the notion thatbyusing this phrase, Congress intended to grant EPA discretion to accept an MSM demonstration even ifit falls short of having every MSM possible because this interpretation contradicts the express language ofsection 188(e) as well as the requirement thatthe area achieve attainment by the most expeditious date practicable. ACLPI argues thatthe Act

uses the phrase to grant EPA the authority to determine whether a state has adequately demonstrated that its planincludes the most stringent

measures that are feasible, not to give the agency carte blanche to circumvent the will ofCongress byignoring the State's failure to meet this requirement.

Response:First, the Act does not require states to adopt everypossible MSM. There is nothing inthe express language ofsection 188(e) that requires such an outcome. The MSM requirement in section 188(e) is not phrased as "all most stringent measures" or as "every most stringent

measure practicable or possible."

Our interpretation ofthe MSM requirement is consistent with howwe havehistorically interpreted the general RACM requirement inCAA section 172(c)(1), a requirement which does use the word "all." This sectionrequires that nonattainment area plans "provide for the implementation ofallreasonably available control measures * * * " (emphasis added). Ininterpreting this requirement, we have long held that a state is not obligated to adopt and implement measures thatwill not contribute to expeditious attainment."

11We would not consider a measure to be reasonable ifit does not contribute to expeditious attainment. See General Preamble at 13560; 63 FR 15920, 15932 (April 1, 1998) (proposed Phoenix

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

### 48723

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

We established this position in a policy that predates the CAA Amendments of 1990. 44 FR 20372, 20375 (April 4, 1979). Congress did not revise the RACM requirement in the 1990 Amendments and thereby endorsed our position. We reaffirmed this position in 1992, see General Preamble at 13560 (April 16, 1992). The court has also endorsed this position in the specific
context ofthe section 189(a) RACM requirement where the court found that using the attainment deadline to determine whether controls must be reasonable "makes sense." OberIIat 1198.

We are interpreting the MSM requirement using the same principle. We are again using the applicable attainment date to determine whether the MSM provision requires a particular control or setofcontrols tobe imposed. Before we can grant an attainment date extension, the state must show that its plan will result in attainment by the "most expeditious alternative date practicable." See CAA sections 188(e) and 189(b)(1)(A)(ii). Ifa state can be shown that including a certain set of potential MSM would not result in more expeditiousattainment, then it is reasonable and consistent with the Act
not to require their inclusion as a condition ofapproval.

Second, Congress did not need to add the phrase "to the satisfaction ofthe Administrator" to grant us the authority
to review the adequacy ofa state's MSM demonstration. It had already given itto

us by granting us the discretionary authority under section 188(e) to grant

orto deny a state's extension request. By attaching thephrase specifically to the MSM requirement, Congress emphasized EPA's administrative authority to determine an appropriate interpretation ofwhat is conceivably a very open-ended and exacting requirement.

Finally, in reviewing whether Arizona has appropriately excluded an otherwise feasible measure or group of feasible measures in its MSM analysis,

we have invoked only one criterion: whether or not the measure or group of

measures are necessary for attainment by the earliest alternative date practicable. Given thatthis is our sole criterion, our interpretation of"to the satisfaction ofthe Administrator" does
not conflict with the Act's requirement for attainment by the earliest alternative date practicable.

2001) (approval ofthe Beaumont/Port Arthur ozone nonattainment area plan). Similarly, for the
purposes ofthe MSM requirement, we would not consider such a measure to be feasible for the area. Comment:ACLPI argues thatEPA's proposed methodology for determining MSM is flawed because it apparently does not require states to quantify expected emission reductions from

measures forpurposes ofmaking MSM demonstrations.

Response:We donot believe that quantification is always necessary or possible or can always be done accurately enough to be meaningful and therefore cannot be required as the sole

means ofdetermining relative stringency. Often, controlmeasures are easily comparable without quantification. In these cases, quantification adds no additional information and isunnecessary. In other
cases, quantification is not possible or cannot be done accurately enough because there isno methodology and/or insufficient datato calculate the difference in emissions reductions between measures.

Because quantification is often problematic, we have not established in

our policy onthe MSM provision a specific method that a state must use to compare the stringency ofmeasures, rather we expect astate to select the best method for making this comparison on

a case-by-case basis taking into account the need to provide aclear and conclusive demonstration. See 24-hour standard proposal at 50284.

B. Commentson EPA'sDetailed EvaluationofthePhoenixSeriousArea PM-10Plan
Comment:ACLPI disagrees with EPA's statement thatthe Act does not require the metropolitan Phoenix serious area plan to address the adequacy ofthe PM-10 monitoring network, asserting that section 110(a)(2)(B)(i) specifically mandates this.

Response:Section 110(a)(2)(B)(i) in title 1,part A ofthe CAA requires implementation plans toprovide for the establishment and operation ofa system to monitor, compile and analyze data on ambient air quality. These systems must necessarily be in place and operating long before a state can develop a nonattainment area plan under title I, part D ofthe CAA (such as the Phoenix serious area plan) because itis the data from this monitoring network which establish the area's nonattainment status and its initial classification as well as the degree ofcontrol needed to attain the applicable standard. Therefore, SIP monitoring provisions are addressed separately and well in advance ofthe development ofnonattainment area plans.

Nonattainment area plans arenot, in general, required to address how the area's air quality network meets our monitoring regulations. Nor do we generally approve or disapprove monitoring networks aspart of nonattainment area plans. These plans

are submitted too infrequently to serve

as the vehicle for assuring that monitoring networks remain adequate and current. Instead, our monitoring regulations in 40 CFR part 58 require
states to submit reports on the adequacy oftheir ambient air quality monitoring networks annually. We discuss the adequacy ofthe monitoring network as part ofour proposed action on the Phoenix plan to support our finding that the plan appropriately evaluates the PM-10 problem in the area. Reliable ambient data is necessary to validate the base year air quality modeling which in
turn isnecessary to assure sound attainment demonstrations. The network,however, does notneed to meet all our regulatory requirements to be found adequate to support air quality modeling. Agood spatial distribution of sites, correct siting, and quality-assured and quality-controlled data are the most important factors for generating adequate data for air quality modeling.

Comment:Several times in its comments, ACLPI asserts that the Phoenix serious area plan failsto includes a specific measure and also fails toprovide areasoned justification for the rejection ofthe measures and thatthis violates both the CAA andEPA guidance, which require serious area PM-10 SIP revisions to provide forthe implementation of all BACM or provide

a reasonedjustification for their rejection.

Response:ACLPI is incorrectly characterizing both the CAA's BACM requirement and our guidance regarding it. Neither requires the implementation ofallBACM. CAA section 189(b)(1)(B) requires that SIPs include "provisions to

assure thatthe best available control

measures for the control ofPM-10 shall be implemented * * *" There is nothing in this express language ofthis section thatrequires the implementation ofall BACM; the requirement is not phrased as "all best available control measures" or as "every best available control measure possible."

In our serious PM-10 nonattainment

area planning guidance (Addendum at 42014), we have interpreted the BACM requirement to mean that a state must onlyprovide for the implementation of BACM on its significant source categories: "in summary [ofthe process for selecting BACM for area sources], the State must document its selection of BACMby showing what control

measures applicable to each source category (not shown to be de minimis) 

### 48724

HeinOnline -- 67 Fed. Reg. 48724 2002

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

were considered. The control measures selected should preferably be measures that will prevent PM-10 emissions rather than temporarily reduce them." See also Addendum at 42011 (De Minimis Source Categories). Again, this guidance does not require the implementation of allBACM. Comment:ACLPI notes that the Arizona legislature repealed the remote sensing program during the 2000 regular session and thus the plan fails to demonstrate adequate legal authority for that measure. ACLPI also notes that the September 10, 2001 ruling by the Arizona Federal District Court found the State's repeal and discontinuation ofthe RSD program aviolation ofthe CAA and askedthat the rulingbe included in the record for this rulemaking. Finally, ACLPI asserts thatas a measure that has been implemented in the State for 3 years, itis a MSM and thus required under CAA section 188(e).

Response:The remote sensing (RSD) program is not a measure developed specifically for the MAG serious area PM-10 plan, but rather one Arizona adopted in 1994 as part ofits carbon monoxide and ozone plans. In the MAG PM-10 plan, Arizona used the RSD program in the same manner as it used

anumber ofother existing measures: to support its demonstration thatthe State has provided for the implementation of BACM for the on-road motor vehicle category.

In the 24-hour standard proposal, we reviewed the plan's BACM and MSM demonstrations for this source category assuming thatthe RSD program was no longer in place and determined that the plan still provided for the implementation ofBACM and inclusion ofMSM without it. See 24-hour standard proposal at 50259. Arizona has in place one ofthe nation's most comprehensive programs to address onroad motor vehicle emissions. With the additional measures in the serious area plan (including a more stringent diesel I/M program and measuresboth encouraging and requiring diesel fleet turnover), we believe the plan easily provides for the implementation of BACM and inclusion ofMSM for onroad motor vehicle exhaust. See 24-hour proposal at 50258.

The plan included a very small NOx benefit of4kg per day, 0.003 percent of the daily NOx inventory. See email, Cathy Arthur (MAG)to Frances Wicher (EPA), "Impact ofRemoval ofRemote Sensing Program onNOx in 2006," October 2, 2001. While not calculated in the serious area plan, a rough estimate ofpotential directly-emitted PM-10 reductions from the program is no more than one-half tonper year(or 2.6 lbs per day). Neither the NOx benefit northe directly-emitted PM-10 benefit would contribute to expeditious attainment of the PM-10 standards in the Phoenix
area, so the State did not need to include the measure to assure expeditious attainment.

Arizona stopped implementing the RSD program because ofits high cost per ton ofreductions, in the order of thousands ofdollars per ton ofpollutant reduced; that is, its economic infeasibility. See ADEQ, Final Arizona State Implementation Plan Revision, Basic and Enhanced Vehicle Emissions Inspection/Maintenance Program, June 2001, p. 26. Under EPA's MSM policy, economic infeasibility is avalid reason for rejecting ameasure as MSM. See 24- hour standard proposal at 50283.

Because we have determined thatthe Metropolitan Phoenix serious area plan provides for the implementation of BACM, inclusion ofMSM and expeditious attainment without the RSD program, any deficiency in legal authority for the program does not affect

our approving the plan or granting an attainment date extension under CAA section 188(e).

Comment:ACLPI disagrees that the plan provides a reasonedjustification for the rejection ofCARB diesel which ACLPI claims both EPA and MAG conceded is an MSM. ACLPI asserts that EPA did not accept the State's justification and developed its own justification for the failure to adopt the

measure. CitingDelaneyv. EPA, 898 F.2d 695 (9th Cir. 1990), ACLPI states that itis not EPA's role to supply justifications that the state has not itself claimed. ACLPI also asserts that BACM
cannot be excused ifit would not advance the attainment date by one year; a measure must be adopted ifit would advance the attainment date by

even one day.

Response:Neither EPAnor MAG concedes thatCARB diesel is amost stringent measure that isfeasible for the Phoenix area. The serious area plan rejects CARB diesel as infeasible for the Phoenix area based on costs. MAGplan,
p. 9-46. Noting the uncertainties regarding this cost estimate, we could
notjudge whether thisjustification was reasonable or not.Annual standard proposal at 19973. The question then

was whether we could still approve the MSM demonstration without CARB diesel and absent areasoned justification for not including it. Our sole criterion for determining if the plan provides for MSM is whether it has excluded any feasible MSM ora group offeasible MSM that, ifadopted and implemented early, would result in attainment ofthe PM-10 standards more expeditiously. On-road and nonroad engines (the source categories that wouldbe affected by CARB diesel) are notimplicated in 24-hour exceedances ofthe PM-10 standard. Microscale plan, tables 3-2 to 3-5. Except for the Salt River monitoring site with its fugitive dust generating industrial sources, 24- hour exceedances in the Phoenix area

are due exclusively to windblown dust from disturbed ground. Microscale plan,
p. 16. Introducing CARB diesel would
not contribute to expeditious attainment ofthe 24-hour standard.

Annual standard exceedances are also dominated by fugitive dust sources with on-road and nonroad engines contributing little to annual PM-10 levels in the area. The small emission reduction associated with the introduction ofCARB diesel would not advance the attainment date in the area, either byitself or in combination with other measures. Ittakes a reduction of

more than 4 metric tons per day to advance the annual standard attainment by a year in the Phoenix area. EPATSD section "Reasonable Further Progress and Quantitative Milestones." The MAG plan estimates reductions from introducing CARB diesel at less than 0.8 mtpd in 2006. MAG plan, p. 10-37. Advancing attainment by one year is the appropriate increment forjudging whether a measure would expedite attainment ofthe annual standard. One year isthe smallest increment oftime that one can advance attainment ofthe annual standard because the annual standard is measured over a calendar year, from January 1to December 31. See 40 CFR part 50.

Because the including CARB diesel would notresult in more expeditious attainment ofeither PM-10 standard,

we find that the Phoenix serious area planhas meet the MSM requirement without it and without including a reasonedjustification for rejecting it ACLPI's reliance on Delaneyis misplaced. In that case, the Court found thatEPA's 1979 guidance explicitly provided that certain measures were presumptively reasonably available and that itwas the state'sburden to

overcome that presumption. In 1992, we repealed theprovisions ofthe 1979 guidance at issue in Delaneyand added provisions specifically for PM-10 that establishes no presumption forthose

measures. See General Preamble at 13560. Here, there was no EPApolicy presumption that CARB diesel was a feasible measure for the Phoenix area which Arizona had to overcome.

Comment:ACLPI argues thatthe metropolitan Phoenix plan improperly rejects various TCMsrelated to congestion management and idling 

### 48725

HeinOnline -- 67 Fed. Reg. 48725 2002

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

reduction on the grounds that individually each measure would have

arelatively small impact on PM-10 emissions because the CAA does not contain a "small impact" exception from BACM and the plan's purported justification for rejecting the TCMs does
not comport with EPA's BACM guidance. ACLPI also argues that the omission ofthese measuresbased solely

onthe amount oftheir individual impact violates therequirement of attainment as expeditiously as practicable because collectively, the

measures might have a significant impact.

Response:Table TCM-3 in the EPA TSD lists four congestion management

oridling measures that were identified

aspotential BACM but were not adopted aspart ofthe plan: off-peak
movement ofgoods, truck restrictions duringpeak times, limit excessive car dealership vehicle starts, and limit idling time to 3minutes. Contrary to ACLPI's assertions, the plan did not reject these measures on "small impact" grounds. Rather, itprovides no clear justification for rejecting any ofthese

measures.

Prior to the development ofthe serious area plan, the Phoenix area already had in place a comprehensive
set ofTCMs. See EPA TSD, Table TCM2.With the additional measures in the serious area plan (including additional traffic light synchronization, transit improvements, andbicycle and pedestrian facility improvements), we believe the plan easily provides for the implementation ofBACM for on-road
motor vehicles even without the four

measures listed above. See annual standard proposal at 19974 and 24-hour standard proposal at 50260. In addition, these measures have little PM-10 benefit; therefore, their adoption and implementation would not contribute to expeditious attainment ofthe PM-10 standards in the Phoenix area.

As we have discussed previously, neither the CAAnor EPA guidance requires the implementation of all BACM, only thata state provide for the implementation ofbest available control

measures on its significant source categories. SeeCAA section 189(b)(1)(B) and the Addendum at 42014. Moreover,

we do not believe thatthe CAA requires

us to reject an otherwise sound plan because ofminorissues that do not affect the principal purposes ofthe plan: implementation ofBACM andprogress towards and expeditious attainment. Because the measures would not contribute to expeditious attainment and the State has provided for the implementation ofBACM without them,

we do not believe thatthe lack ofthese measures or areasoned justifications for rejecting the measures is grounds for disapproving the plan.

Comment:Several times in its
comment letter, ACLPI states that some jurisdictions in the nonattainment area have not made commitments to adopt certain measures when other jurisdictions have and thatthe plan provides no explanation as to why the implementation ofthese measures by all jurisdictions is infeasible. ACLPI asserts that EPA guidance indicates that BACM shouldbe adopted and implemented throughout a serious PM-10 nonattainment area unless 100 percent implementation isinfeasible. ACLPI also contents thatbecause some jurisdictions have committed to more stringent controlmeasures than other jurisdictions, their measures must be considered BACM/MSM andthe plan
must either provide for these measures' implementation by alljurisdictions or demonstrate why this is infeasible.

Response:ACLPI cites our serious PM-10 nonattainment area planning guidance atAddendum at 42014 to support its first premise. This guidance
states:

When evaluating economic feasibility, States should notrestrict their analysis to simple acceptance/rejection decisions based

on whetherfull application ofameasure to all sources in aparticular category isfeasible. Rather, a State shouldconsider implementing

a control measure ona more limitedbasis, e.g.,for apercentage ofthe sources ina category ifitis determined that 100percent implementation ofthemeasure is infeasible. This would mean, for example, that an area should consider the feasibility ofpaving 75 percent of theunpaved roadways even though paving all ofthe roads may be infeasible.

Contrary to ACLPI's assertion,this guidance does not demand states implement a measure 100 percent unless 100 percent implementation is infeasible. Rather, it suggests that states not consider "full implementation on all

sources in the nonattainment area" as the only possible implementation scenario for evaluating a measure's economic feasibility andthat, before it rejects ameasure as economically infeasible, it should first consider less extensive implementation.

The CAA's requirements to implement BACM and include MSM apply to the nonattainment area as a whole andnot to each individual jurisdiction within that nonattainment area.' 2 Consequently, we have reviewed

12This is clear from the language ofthe applicable CAA sections. CAA section 189(b)(1)(b) requires that "a state in which all orpart ofa serious area is located shall submit an implementation plan for such area that includes whether the combined effect of all controls adopted inthe metropolitan Phoenix area for aparticular source category results in the implementation ofBACM and the inclusion ofMSM for that source category. Because BACM and MSM are nonattainment area-wide requirements, the actions ofone jurisdiction within the nonattainment

area cannot set a standard for BACM and/or MSM that must either be implemented by all otherjurisdictions within the area or demonstrated to be infeasible.

Comment:Several times in its
comment letter, ACLPI states that some jurisdictions in the nonattainment area have not made commitments to adopt certain measures when other jurisdictions have. In this context, ACLPI asserts that CAA section 110(a)(2)(E) requires thatplans provide

assurances ofadequate personnel, funding and authority to implement control measures.

Response:ACLPI is incorrectly applying CAA section 110(a)(2)(E). Under this section, a state needs to provide assurances of adequate personnel, funding and authority only for those control measures that it has included in its submitted implementation plan. Itdoes notneed
to provide such assurances for control

measures that are not included in its submitted implementation plan, whether or not an argument could be made that such measures should have been included to meet another CAA provision. This is clear from the language ofthe section: "[e]ach implementation plan submittedbya State * * * shall * * * provide (i) necessary assurances that the State * * * will have adequate personnel, funding, and authority under State
* * * lawto carry out such implementation plan." (emphasis added). Therefore, where ajurisdiction has not committed to implement a measure, it is not required to provide

assurances ofadequate resources as part ofits submittal in order to have it approved under CAA section 110(a)(2)(E).

Comment:Fora number ofreasons, ACLPI asserts that Rule 310.01 weakens the FIP rulerequirements for disturbed
vacant lots andunpaved roads. ACLPI further asserts thatEPA's conclusion thatthe differences between the FIP rule

* * * provisions to assure that [BACM] * * * shall
be implemented * * * " CAA section 188(e) requires that "the State [requesting an extension of the attainment date] demonstrates * * * that the plan for that [serious] area includes the most stringent measures * * * "Therequirements in both sections apply to the serious area and not to the individualjurisdictions within the serious area. 

### 48726

HeinOnline -- 67 Fed. Reg. 48726 2002

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

and Rule 310.01 will not have a significant impact on emission reductions isunsupported by quantification or analysis ofthe relative emission reductions andthus EPA's approval ofthe rule change as sufficient
to provide the same level ofcontrol as the FIPrule is therefore arbitrary and capricious andviolates the Act and EPA guidance that require BACM to go beyond existing RACM-level controls.

Response:We are not withdrawing or modifying the FIP fugitive dust rule in this action. Therefore, comments regarding the effect of approving Rule 310.01 onthe FIPrule are not germane.

Neither the CAA norEPA guidance mandates that a BACM-level control

measure always go beyond the existing RACM-level control measure. While both the CAA and EPA guidance intend

agreater level of stringency to apply in

areas thatare required to implement BACM than in those areas required only
to implement RACM, the intent is that the overallPM-10 control strategy for a category should, in general, be more stringent rather than that every individual control measure in that strategybe more stringent.

A state can show that it has implemented BACM in more than one way. It can show itby demonstrating that its BACM-level control measures for asource category collectively go beyond existing RACM-level measures for that category. Addendum at 42013. It can also show itby demonstrating that its adopted measures meet the definition ofBACM. Addendum at 42010. Thus, ifa state has already adopted measures to meet the RACM requirement that are collectively the 'maximum degree ofemissions reduction achievable from a source or

source category which is determined on

a case-by-case basis, considering energy, economic and environmental impacts"
then it need not strengthen the measures further to meet the BACM requirement.

We also emphasize thata BACM demonstration is done source category by source category and not measure by

measure. In determining whether astate has provided for the implementation of BACM on aparticular source category,

we need to look atall the control

measures for that category. In this particular instance, Rule 310.01 alone does not constitute the entire BACMlevel control strategy for vacant lots and unpaved roads. Rather, it isthe combination ofRule 310.01, Rule 310, and city and town commitments that constitute the BACM strategy for this category. See annual standard proposal
at 19977 and 19978 and 24-hour standard proposal at 50263 and 50264. Comment:ACLPI comments that EPA's approval ofthe BACM/MSM demonstration for construction sitesis contingent upon commitments by MCESD to add additional control requirements for dust suppression and
to make other changes toMCESD Rule 310. While ACLPI agrees that Rule 310 needs strengthening, it asserts thata commitment to make unspecified changes to the rule to achieve aBACM/ MSM level ofcontrolis inadequate because itdoes not meet the requirements ofthe Act for enforceable

measures nolater than June 10, 2000 (BACM) or as expeditiously as practicable (MSM) and offers no

assurances that adequate changes will

everbe adopted. ACLPI claims thatthe techniques for controlling emissions from construction activities and sites are well known.

ACLPI further asserts thatEPA may only approve aplan based on a commitment pursuant to CAA section 110(k)(4) and then only ifthe state commits to adopt specific enforceable

measures by a date certain but not later than 1year after the date ofapproval of the plan revisions. ACLPI claims that MCESD's commitments to improve Rule 310 do not meet the requirements of CAA section 110(k)(4) because it does
not committo adopt specific enforceable measures but onlyto "research, develop andincorporate" additional unspecified measures for dust suppression practices/equipment into Rule 310 orthe dust control plans required under thatrule. Finally, ACLPI
states thatthe serious area plan must include the BACM/MSM measures identified from SouthCoast, Clark County and Imperial County or provide

areasoned justification for their rejection and itis not enough for Maricopa County to commit to studying these measures.

Response:We are approving MCESD's commitments underCAA section 110(k)(3) and not section 110(k)(4). We believe-consistent with pastpracticethat the Act allows approval of enforceable commitments under section 110(k)(3) that are limited in scope where circumstances exist thatwarrant the use ofcommitments in place ofadopted

measures. These commitments are enforceable by EPA and citizens under, respectively, CAA sections 113 and 304 ofthe Act. 1 3

13Inthe past, we have approved enforceable commitments and courts have enforced these actions against states that failed to comply with those commitments. See, forexample, American LungAssociationofNew Jerseyv. Kean,670 F. Supp. 1285 (D.N.J. 1987), affirmed, 871 F.2d 319 (3rd Cir. 1989); NRDCv. N.Y. StateDept.of EnvironmentalConservation,668 F. Supp. 848 Section 110(k)(4)provides for the conditional approval ofState commitments; however, these commitments do notneed to be enforceable. Commitments approved under section 110(k)(3) are not enforceable by either EPA or citizens, ratherthe Act provides thatthe conditional approval will convert to a disapproval if "the State fails to comply with such commitment."

MCESD's commitments havebeen adoptedby the Maricopa County Board ofSupervisors after appropriate public notice andhearing and meet Arizona
state requirements for the adoption of enforceable SIP commitments by local jurisdictions. See A.R.S. 49-406 G. and Maricopa County Resolutions. Once we have approved them into the SIP under CAA section 110(k)(3), the commitments are fully enforceable against MCESD and the Board under CAA sections 113 and 304.

We are allowing the use ofthese enforceable commitment here because it is the only approach available at this timeto assure the needed improvements
to Rule 310. The information needed to make these improvements and to specify the details ofthese improvements does not currently exist and mustbe developed through additional research andinvestigation.

While the general techniques for controlling dust from construction activities are well known (e.g.watering), the most effective applications ofthese general techniques for controlling emissions from any particular construction site in Maricopa County (e.g., how much water andwhen to apply it)are not well known. Construction sites differ in soils (affecting the quantity ofwater needed for effective control), meteorological conditions (affectingthe frequency with which water mustbe applied), equipment size/use (affecting quantity and plume characteristics ofdust generated), project phase (affecting quantity and timeperiod ofdust generated), and level of activity (affecting quantity ofdust generated). The specifics ofhow controls shouldbe applied to meet the 20 percent opacity standard and other applicable Rule 310 standards will vary depending on these and other site and activity parameters.

(S.D.N.Y.1987); Citizens fora Better Environmentv. Deukmejian, 731 F. Supp. 1448, reconsideration granted inpart, 746 F. Supp. 976 (N.D. Cal. 1990); Coalition forCleanAir, et al.v. South CoastAir Quality ManagementDistrict,CARB, andEPA, No.
CV 97-6916 HLH, (C.D. Cal. August 27, 1999). Further,ifa statefails to meet its commitments, we

can make a finding of failure to implement the SIP under Section 179(a), which would start an 18- monthperiod for the State to begin implementation before mandatory sanctions are imposed. 

### 48727

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

One ofthe enforceable commitments by MCESD is to develop parameters that address various site conditions and are sufficient to ensure that Rule 310's performance standards are met more consistently. The concern captured in this enforceable commitment is that, while it isimportant for sites tohave

some flexibility in selecting which control measure(s) to implement, there

are field circumstances where the technique must be implemented in a certain manner tobe effective. For example, where hydrophobic soils exist under dry meteorological conditions, it may be necessary to water several days prior to ground disturbance to allow
water to penetrate to the depth ofcut. In some other situations, a tackifyer or surfactant needs to be added tothe
water forbetter penetration. However, these approaches maybe needed only under certain field conditions. MCESD needs additional time to investigate when and where itwould be appropriate torequire more specific controls and what those controls should be.

Another one ofMCESD's commitments is to modify Rule 310's existing opacity standard/test method or add an additional opacity standard(s)/
test method(s), so that theybetter characterize fugitive dust sources that
create intermittent plumes. Information

onhow to dothis most effectively is currently lacking. While derivations on EPA Reference Method 9 (the standard opacity test method) observations have been adopted in Rules 310 and 310.01 for unpaved roads and unpaved parking

areas tobetter accommodate the temporal nature ofplumes from vehicle passes, additional field research is needed to determine how observation intervals and other aspects ofopacity readings can bebetter tailored to the variety ofintermittent plumes generated by construction equipment and activities.

Once we determine that circumstances warrant the use ofan enforceable commitment, we believe that three factors should be considered in determining whether to approve the enforceable commitments: (1)whether the commitment addresses a limited portion ofthe statutorily-required program; (2)whether the state is capable offulfilling its commitment; and (3) whether the commitment is for a reasonable and appropriate period of time. 14

14 In 1994, in considering EPA's authority under section 110(k)(4) to conditionally approve unenforceable commitments, the Court ofAppeals for the District ofColumbia Circuit struck down an EPA policy that would allow States to submit (under limited circumstances) commitments for First, MCESD's commitments address

avery limited portion ofthe CAA's requirements for the implementation of BACM and the inclusion ofMSM. In this case, MCESD's commitments are improvements to aspects ofthe alreadyadopted and implemented Rule 310; improvements that, we again emphasize, cannot be made at this time because additional research is needed.15 Second, MCESD has committed

resources adequate to fulfill its commitments andhas provided information on its work plan for completing the necessary technical work. SeeMaricopa County commitments asrevised December 19, 2001.

The final factor is whether the commitment is for a reasonable and appropriate period. Allbut one ofthe commitments have deadlines of December 2002, less than ayear after their approval. The other commitment is the implementation ofa second level of dust control education that willbegin in the March to June 2003 time frame. See Maricopa County commitments as revised December 19, 2001. Given the complexity ofthe tasks required bythe commitments, we believe that these schedules are expeditious. Moreover, they are consistent with the attainment and RFP demonstrations in the plan.

Our approach here ofaccepting enforceable commitments that are limited in scope is not new. We have historically recognized that under certain circumstances, issuing afull approval may be appropriate for a submission that consists, in part, of an enforceable commitment. See e.g., 62 FR 1150, 1187 (January 8, 1997) (ozone attainment demonstration for the South Coast Air Basin); 65 FR 18903 (April 10, 2000) (revisions to attainment demonstration for the South Coast Air Basin); 63 FR 41326 (August 3, 1998) (federalimplementation plan for PM-10 for Phoenix); 48 FR 51472 (State Implementation Plan for NewJersey).

Nothing in the Act speaks directly to the approvability ofenforceable commitments. However, we believe that

our interpretation is consistent with its provisions. For example, CAA section

entire programs. NaturalResourcesDefenseCouncil

v. EPA, 22 F.3d 1125 (D.C.Cir. 1994). While we do not believe thatcase isdirectly applicable here, we agree with the Court that other provisions intheAct contemplate that a SIP submission will consistof

more than a merecommitment. SeeNRDC,22 F.3d
at 1134.

15As we will discuss later, MCESD has also committed to adopt a rulefor certain types of charbroilers. This commitment does not change our analysis here because, even when combined with the commitments to improve Rule 310, itis a very small part ofthe demonstration that the plan includes MSM. 110(a)(2)(A) provides that each SIP "shall include enforceable emission limitations and other control measures,

means or techniques * * * as well as schedulesandtimetables for compliance,as maybe necessary or appropriate to meet the applicable requirement ofthe Act." (Emphasis added.) The emphasized terms mean that enforceable emission limitations and other control measures do not necessarily need to be fully adopted to meet the Act's applicable requirements for the implementation ofBACM and inclusion ofMSM. Rather, the emissions limitations and other control measures maybe supplemented with other SIP rules-for example, the enforceable commitments we are approving todayas long as the entire package of

measures andrules provides for BACM and MSM.16

Comment:ACLPI comments thatthe CAA requires that SIPs must provide for the implementation ofall RACM and thatthe Governor's Agricultural Best Management Practices Committee identified avariety ofavailable and feasible control measures which are included in the agricultural general permit rule asBMPs. ACLPI asserts that the Rule does not meet the CAA requirement for all RACMbecause it onlyrequires the implementation ofone BMP from each ofthree categories of farm activities even ifthe implementation ofmore than one BMP wouldbe technologically and economically feasible.

Response:This comment is neither
germane to today's action nor timely.In today's action, we have addressed only whether Arizona's BMP general permit rule provides for the implementation of BACM and the inclusion ofMSM. We have not addressed whether it also provided for the implementation of RACMbecause we have already done so in an earlier rulemaking that was finalized on October 11, 2001. The appropriate time for ACLPI to raise issues regarding whether the general permit rule meets the CAA's RACM requirement for agricultural sources in the Phoenix area was duringthe
comment period on this earlier rulemaking. ACLPI made comments on this earlierrulemaking, andwe fully addressed those comments in the final

1 6Ourinterpretation that the Act allows for an approval oflimited enforceable commitments has been upheldby theNinth Circuit Court ofAppeals,

aswell asbyother circuits. SeeKampv. Hernandez,752 F.2d 1444 (9th Cir. 1985); Cityof Seabrookv.EPA, 659 F.2d 1349 (5th Cir. 1981); Connecticut Fund fortheEnvironmentv.EPA, 672 F.2d998 (2dCir.), cert. denied 459U.S. 1035 (1982); FriendsoftheEarthv.EPA, 499 F.2d 1118 (2dCir. 1974). 

### 48728

HeinOnline -- 67 Fed. Reg. 48728 2002

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

action. See 66 FR 51869, 51871. See also, 66 FR 34598 (June 29, 2001).

Comment:ACLPI asserts thatthe metropolitan Phoenix area plan fails to include the most stringent measures as required byCAA section 188(e) because it does not uniformly require the cessation oftilling on high wind days as South Coast Rule 403 rule doesbut rather includes it as one measure among several that afarmer may choose to implement. ACLPI further asserts that ADEQ's attempt to justify this deviation by stating that "no research currently exists which demonstrates that cessation ofhigh wind tilling when gusty winds exceed 25 mph in the Maricopa County area ismore effective
atreducing PM-10 then the agricultural
PM-10 general permit * * *" is irrelevant because the appropriate inquiry is whether the cessation of tilling on high wind days combined with the implementation of atleast one otherBMP wouldbe more effective at reducing PM-10 which ACLPI claims, without support, it wouldbe.

Response:South Coast Rule 403 does
not require cessation oftilling on high wind days. Rule 403 includes a list of optional measures an affected source

canuse to reduce PM-10. For agricultural sources affected by Rule 403, the South Coast AQMD developed

a series offarming practices that can be used by a grower as alternative means to comply with therequirements ofRule 403. These practices are listed in "Rule 403 Agricultural Handbook: Measures to Reduce Dust from Agricultural Operations in the South Coast Air Basin" ("Handbook"). Ifa grower decides to opt for compliance with the Rule by utilizing the dust control practices in the Handbook, the grower must cease tilling and soil preparation operations when winds are over 25 mph.

The requirement to cease tilling on high wind days isfound in Rule 403.1 ("Wind Entrainment ofFugitive Dust"). The requirement is applicable only to the Coachella Valley (PalmSprings area) ofthe South Coast air basin and has a number ofexemptions. See South Coast Rule 403.1, sections (a), (d)(4), and (h)(4).

The BMP general permit includes "limited activity during high wind events" among the list ofBMPs from which a grower can select. The BMP Committee and Arizona decided not to require cessation oftilling on high wind days as a provision in the general permit for anumber oftechnical and practical
reasons, the main ones being the infrequency ofhigh wind events in the Phoenix area, especially in comparison to the frequency ofhigh wind events in the Coachella Valley.

Based onlocal meteorological data, MAG estimated that there were 11 days in 1995 with winds greater than 15 mph. In the Phoenix nonattainment
area, the State determined that a small percentage (i.e., 15 percent) oftilling

occurs during the high wind season (i.e., March through September). Within the high wind season, only 4percent of days have wind speeds greater than 15 mph. 1 7 The Coachella Valley is much

more windy, typically experiencing high wind greater than 25 mph on 47 days per year. 1 8Based on this information, the BMP Committee and the State determined that an agricultural requirement developed specifically for Coachella Valley high wind conditions

was not appropriate for the Phoenix area and that requiring cessation oftilling on high wind days would not be reasonable because since it would impact a small number ofgrowers andprovide minimal reductions.

Arizona has provided areasonable justification for not requiring cessation oftilling duringhigh wind events. In the Microscale plan, the State shows that itwas windblown dust from an already tilled agricultural field and not the active tilling ofthat field that contributed tothe 24-hour exceedance
atWest Chandler. SeeMicroscale plan,
pp. 16. In the serious area plan, the State demonstrates thatthe BMP general permit rule as adopted in combination with other adopted measures provides for expeditious attainment ofthe 24- hour PM-10 standard in the Phoenix

area and is not necessary for expeditious attainment ofthe annual standard in the

area. Finally, the State through its BMP committee has determined thatthe requirement for one BMP per category is the most effective economically and technologically feasible controlmeasure for agricultural sources in the Phoenix

area. Given all ofthis, the State has

17Infact, when using mean hourly wind speed observations averaged over all monitoring sites in the Maricopa County nonattainment area for 1995, it was estimated that there 29 hours with wind speeds between 15 and 19.9 mph, 7hours with wind speeds between 20 and 24.9 hours, and only

one hour with wind speeds over 25 mph. MAG TSD, Appendix II, Exhibit 7"Wind Criteria and Associated Emissions for Regional Particulate Matter Modeling," Updated April 13, 1999, p. 3.

18The Coachella Valley is not the only agricultural area inthe SouthCoast district. Riverside (outside ofthe Coachella Valley) and San Bernardino Counties are the predominant agricultural areas inthe region. These areas experience winds greater than 25 mph approximately 25 and 23 days per year, respectively, yet the South Coast does not impose the cessation oftillingrequirement inthese areas unless a grower opts to use the practices listed in the Handbook as the means ofcomplying with Rule
403. reasonably declined to mandate the cessation oftilling during high winds when faced with an absence ofdata that itwould make the BMP rule more effective. 19

Comment:ACLPI asserts thatbecause Arizona is seeking an extension ofthe PM-10 nonattainment date to December 31, 2006, it must show that itsplan includes the most stringent measure for each source category, including agriculture, citing CAA section 188(e). It then contends that South Coast Rule 403 is significantly more stringentthan the general permit rule, notingthat Rule 403 establishes six categories of management practices and requires operators to implement at least one of the listed practices in 5of6 categories (i.e.,Active, Farm Yard Area, Track-Out, Unpaved Roads, and Storage Pile) and three measures in the "Inactive" category. ACLPI claims that when the cessation oftilling on high wind days is included, each commercial farmer is required to implement a minimum of nine controlmeasures andthat Arizona's program onlyrequires atotal ofthree control measures. To qualify and obtain an extension ofthe attainment date, the Arizona SIP must include agricultural measures that are at least as stringent as Rule 403.

Response:Neither the CAA norEPA policy requires that areas seeking attainment date extensions include without exception the most stringent

measures for each source category. The CAA requires only that the plan include the most stringentmeasures found in the implementation plan ofother States

or usedin practice that are feasible in the area. SeeCAA section 188(e). We interpret the MSM provision to not require any measure that is infeasible on technological or economic grounds, any

measure forinsignificant source categories, and any measure or group of

measures that would not contribute to expeditious attainment. See 24-hour standard proposal at 50282-84.

ACLPI is not correctly characterizing the requirements ofthe South Coast's agricultural control measures (which are foundin Rules 403 and403.1). Agricultural operations are required to comply with the provisions ofRule 403 unless the person responsible for such

19We note that one exemption from Rule 403.1's cessation oftilling requirement is when tilling activities result in a net reduction ofwindblown fugitive dust, an exemption that is applicable only ifwind blown fugitive dustis notvisible from tilled soil, butis visible from untilled soil within the

same agricultural parcel. Rule 403.1 (h)(4)(B). This exemption shows that there are some situations whencessation oftilling during a high wind event is actually counter-productive and thus it is not always more effective to combine it with another BMP. 

### 48729

HeinOnline -- 67 Fed. Reg. 48729 2002

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

operations voluntarily implements the conservation practices contained in the
most recent Rule 403 Handbook. See Rule 403 (h)(1)(B). The Handbook, and
not the rule itself,has therequirement
to implement at least one ofthe listed practices in 5of 6 categories and three

measures in the Inactive category. A
grower, however, onlyhas to implement practices for those categories of agricultural operations thatthey actually have; thus ifs/he does not have

one ofthe activity categories and/or inactive fields then the number of practices s/he must implement is fewer. As we have noted above, the requirement for cessation oftilling on high wind days applies only in the Coachella Valley portion of the South Coast district and is a requirement on all agricultural operations in the other portion ofthe district only when a grower opts for using the Handbook to comply with Rule 403. Therefore, ACLPI exaggerates the requirements of the South Coast agricultural control
program when itclaims the program requires each commercial farmer to implement a minimum ofnine management practices. 2 0
We agree that in general Rule 403 (or the Handbook) islikely to be more stringent than the general permit rule. We, however, also agree, as discussed below, with the State's assessment that the South Coast requirements are infeasible for the Phoenix area and that the general permit rule represents the
most stringent economically and technologically feasible agricultural control program for the area.

In assessing South Coast's requirements, the BMP Committee and ADEQ determined thatbecause ofthe lack ofadequate technical information concerning BMP costs and effectiveness, requiring at least one BMP for the three agricultural categories adequately addressed agricultural sources ofPM-10 in the Maricopa County nonattainment

area. ADEQ concluded that:

The agricultural general permitcannot mirror South Coast Rule 403 fora varietyof

reasons. One mainreason isthat agriculture in Maricopa area is primarily floodirrigated. The South Coast has dryland, irrigated, and sprinklerirrigated agriculture. The actual amount ofirrigation water and frequency of irrigation can effect wind erosion estimates

20We also note that for inactive fields, the
Handbook allows agricultural operators to comply with localjurisdiction requirements in lieu of implementing three practices (Handbook, sectionII, p. 4.) and that a field which has been withdrawn from agricultural usein the Phoenix area becomes subject to MCESD Rule 310.01's BACM/MSM-level requirements for open areas and vacant lots. All these control options demonstrate that the six categories/nine practices versus three categories/ three practices comparison is misleading. and the effectiveness ofdifferent control

measures under different conditions. Therefore, the BMPs forMaricopa County

were based onpractical applications during those times when the fields were not flooded. Also, because the application ofmore than

one BMP at a time fora selected category would only provide incremental PM-10 reductions, sometimes at an uneconomical cost,flexibility wasprovided in therule to allow the expert (the farmer) to decide what BMP should be applied when andwhere.

As we discussed in the proposal for the 24-hour standard (see 24-hour standard proposal at 50268) and as we concluded in our original FIP measure for the agricultural sector (63 FR 41332), the BMP Committee found that agricultural PM-10 strategies must be based onlocal factors because ofthe variety, complexity, anduniqueness of farming operations and because agricultural sources vary byfactors such

asregional climate, soil type, growing
season, crop type, water availability, andrelation tourban centers.

While the Committee surveyed

measures adopted in other geographic
areas, including South Coast, these

measures were oflimited utility in determining whatmeasures are available for the Maricopa County area. Given the limited scientific information available and the myriad factors that affect farming operations, the BMP Committee concluded thatrequiring

more than one BMP could notbe considered technologically justified and could cause an unnecessary economic burden to farmers. BMP TSD, p. 18.

Adding to concerns about the economic feasibility ofrequiring more BMPs per farming activity is the general uncertainty regarding the costofthe BMPs and continued viability of agriculture in Maricopa County. Between 1987 and 1997, the number of farms operating in Maricopa County declined by approximately 30 percent and the amount ofland farmed declined by approximately 50 percent. This trend is expected to continue. Finally, in order tojustify additional requirements for farming operations in the area beyond those in the general permit rule, the BMP Committee determined that a significant influx ofmoney and additional research would be needed.

Based on all ofthese factors, the BMP Committee concluded thatthe Handbook's control requirements were neither technologically nor economically feasible for agricultural

sources in Maricopa County and therefore are not feasible for the Phoenix

area. BMP TSD, p. 18.

We agree with the analysis ofthe BMP Committee. As noted previously, the development ofthe general permit rule was a multi-year endeavor involving an array of agricultural experts familiar with Maricopa County agriculture. Maricopa County is only the second

area in the country where formal regulation ofPM-10 emissions from the agricultural sector has everbeen attempted. We conclude thatthe Rule 403's and the Handbook's requirements

are neither technologically nor economically feasible forMaricopa County and thus Arizona need not include them in the Phoenix serious

area plan in order for us to grant an attainment date extension under CAA section 188(e).

Comment:ACLPI claims thatthere is

nojustification for relaxing the stringency ofRule 403 because virtually all ofthe control measures listed in Rule 403 are in the Arizona rule and so it is clear thattheir implementation is feasible. ACLPI asserts that Arizona's contention that "the application ofmore than one BMP at atime for a selected category would onlyprovide for incremental PM-10 reductions sometimes at an uneconomical cost," is
not supported by any competent data, improperly delegates regulatory discretion tothe regulated community, and ignores the clear mandates ofthe Act.

Response:We agree that the many of the individual best management practices in the Rule 403 Agricultural Handbook are also feasible practices for the Phoenix area. Arizona,through the BMP committee, also agreed and incorporated many ofthem into the general permit rule. However, the feasibility and adoption ofany one BMP has little relevance here because neither Rule 403, the Handbook, nor the general permit rule requires the implementation ofany specific BMP, rather theyrequire the implementation ofat least one BMP from alist ofpossible BMPs for each of several categories offarm operations.

As has been notedmany times before, little data is available on the cost of implementing specific BMPs in the Phoenix area. Using whatlittle data was available and the technical expertise of local farmers, state and federal agricultural agencies, 21 and agricultural experts from the University ofArizona, Arizona determined that requiring the implementation at least one BMP for each ofthe three categories of

21The BMP Committee is composed offive local farmers, the Director ofADEQ, the Director ofthe Arizona Department ofAgriculture, the State Conservationist forthe United States Department of Agriculture's (USDA)Natural Resources Conservation Service (NRCS) state office, the Dean ofthe University ofArizona's College of Agriculture, and a soil scientist from the University ofArizona. 

### 48730

HeinOnline -- 67 Fed. Reg. 48730 2002

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

agricultural activities is the most stringent level ofcontrol that is economically and technologically feasible for the Phoenix area. This conclusion was arrived at only after a lengthy and open process and only after taking into consideration South Coast's approach to agricultural control. See 66 FR 3458, 34601.

We donot agree that the general permit rule improperly delegates regulatory discretion tothe regulated community. The general permit rule follows the same general control format

as Rules 310 and 310.01. This format allows theregulated entity (e.g., construction site operator, vacant lot
owner, unpaved parking lotowner, etc.) to choose from alistof optionsfor controlling its source. 2 2For example, an unpaved parking lot owner may pave, gravel, or apply a chemical stabilizer. See Rule 310.01, section 303.1. This control format is the standard model for fugitive dust rules and has developed

over timebecause ofthe need to impose effective but reasonable and feasible controls on alarge number of similar but distinct sources. For the Phoenix serious area plan, we have found that the control measures using this format provide for the implementation of BACM and the inclusion ofMSM for a number ofsignificant source categories. As much as (ifnot more so than) an unpaved parking lot owner or avacant lot owner, a grower is in thebest position to determine which BMPs are best and most effective for the conditions on his/her farm.

Comment:ACLPI asserts thatbecause the general permit rule fails to require
any specific control requirements, there is no way that the State can know or meaningfully predict what the effect of the rule willbe and thus any estimated emissions reduction is entirely speculative and thus inadequate under the CAA.

Response:As we noted in a previous comment, the general permit rule follows the same standard control format usedby many fugitive dust rules, such as Rules 310 and 310.01 (andRule 403 and the Rule 403 Agricultural Handbook). This format allows the regulated entity to choose from a list of options for controlling its source.

Emission reductions from these types ofrules need to be quantified because they often constitute the primary control strategy needed to demonstrate attainment and/or RFP. The accepted methodology for quantifying them is to

22This control format is also used in South
Coast's fugitive dust rules, including Rules 403, 403.1, and 1186. We approved theserules on December 9, 1998 (63 FR 67784). assume that some fraction ofthe regulated sources will choose a particular control option.For example, the assumption used in the Phoenix plan to quantify emission reductions from the unpaved parking lot measure is that one third ofthe regulated lots will be paved, one-third will be graveled, and one-third will be chemically stabilized. SeeMAG TSD, p. V-17. Provided that the assumptions are reasonable, we accept the resulting emission reductions estimate.

To prepare the emission reductions estimates for the general permit rule, ADEQ hired URS. To estimate the reductions, URS determined the most likely implementation scenario. This scenario was based on available data on the crops grown andtheir acreage in the Phoenix area aswell as on interviews of growers inthe Phoenix area about which BMPs they would mostlikely use in certain situations. The growers, having intimate knowledge ofthe crops and growing conditions in the area, are the technical experts on howthe BMP rule will be implemented. By going to the technical experts, URS andArizona reduced the level ofuncertainty in the emission reduction estimates to the
extentpracticable.

We believe that their approach is reasonable given the situation. Most of the BMPs have never been applied in Maricopa County or elsewhere, and until the BMPs are fully implemented and ADEQ has had adequate time to evaluate their effectiveness, there will always be some degree ofuncertainty regarding actual emission reductions. While itis possible that the reductions couldbe less than expected, it is equally plausible thatthe reductions will be greater than expected.

We note that no matter how specifically arule is written, no one can

everknow for certain what the future emission reductions from it will be. Estimates offuture emission reductions require assumptions about future activities that are always speculative to

a degree. In making emission reduction estimates, we attemptto reduce the uncertainties tothe extent possible, but

we can never totally eliminate them. Quantification ofemission reductions from rules is a necessary part ofmeeting the Act's requirements for reasonable further progress and attainment demonstrations and quantitative milestones. Beyond setting the requirements (andrequiring attainment demonstrations be based on air quality modeling, see, for example, CAA section 189(b)(1)(A)), the Act leaves itto EPA's expertise to determine what constitutes technically acceptable demonstrations. As we have discussed above, Arizona followed standard and accepted procedures for quantifying emission reductions from the BMP general permit rule and as aresult we find the resulting estimates acceptable for the serious area plan.

Comment:ACLPI disagrees with EPA's conclusion that the metropolitan Phoenix serious area plan adequately demonstrates that attainment by December 31, 2001 is impracticable because the plan fails to adopt all BACM for significant sources, fails to implement some measures in a timely

manner orrelies onmere commitments and improperly excludes BACM for de minimis sources. ACLPI asserts thatthe planimproperly fails to analyze whether the area would be in attainment by the 2001 deadline ifall BACM were adopted and implemented on time.

Response:Wehave carefully reviewed the plan and have found that it provides for the implementation ofBACM,

assures timely implementation of
measures, and relies on enforceable commitments only where they are the onlyfeasible means ofproviding for the implementation ofBACM asrequired by CAA section 189(b)(1)(B). Seeannual standard proposal at 19984 and the 24- hour standard proposal at 50273.

As we have discussed previously, neither the CAA orEPA guidance requires the implementation ofall BACM. Both only require that a state provide for the implementation ofbest available control measures on its significant source categories. Both also allow the de minimis sources to be exempted from the BACM requirement. See CAA section 189(b)(1)(B) andthe Addendum at 42014.

Contrary to ACLPI's assertion,the plan does provide a clear demonstration that even with the implementation of BACM on all source categories including de minimis categories, the Phoenix area would notbe in attainment ofeither PM-10 standard by the end of2001. This demonstration is

a necessary part of showing thatthe plan correctly determines which source categories are de minimis andwhich are significant. SeeMAG plan, pp. 9-9 to 9- 15 and the section "BACM AnalysisStep 2,Model to Identify Significant Sources" in the EPA TSD.

Comment:ACLPI disagrees with EPA's conclusion that the metropolitan Phoenix serious area plan adequately demonstrates attainment bythe earliest date practicable afterDecember 31, 2001 because the plan fails to adopt all feasible MSM, fails to implement some

measures in atimely manner orrelies

on mere commitments andimproperly excludes MSM for de minimis sources. ACLPI asserts thatthe plan improperly 

### 48731

HeinOnline -- 67 Fed. Reg. 48731 2002

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

fails to analyze whether the area would be in attainment earlier ifall MSM were adopted and implemented in a timely

manner.

Response:We have carefully reviewed the plan and have found thatit includes allfeasible MSM to our satisfaction,

assures timely implementation of
measures, and relies on enforceable commitments only where they are the onlyfeasible means ofproviding for the implementation ofMSM orother

measures necessary for timely attainment. See annual standard proposal at 19984 and the 24-hour standard proposal at 50274. We note again thatthe Phoenix serious area plan did not exclude any MSM on thebasis ofde minimis source categories.

Comment:ACLPI comments thatthe plan fails to include contingency
measures, noting the purpose of contingency measures is to assure continued progress toward attainment while the SIP isbeing revised ifa state fails to make RFP or attainby the applicable attainment date. ACLPI
asserts that ifa state failsto make RFP

ortimely attain, the obvious conclusion is thatthe currently implemented control measures are insufficient and additional measures are needed and that this is true regardless ofwhether the implemented measures were relied
upon in the RFP and attainment demonstrations and for this reason, EPA's suggestion that the contingency

measure requirement canbe satisfied by committed measures that are implemented but not relied upon in the demonstrations defeats the purpose. ACLPI contends thatthe proposed SIP
must include contingency measures that will take effect without further action by the State or Administrator and the SIP does not include any such measures.

Response:The metropolitan Phoenix serious area plan does contain contingency measures. For the annual standard, the plan relies on the agricultural BMP general permit rule as
a contingency measure. Forthe 24-hour standard, the plan relies on thepaving

ortreatment ofunpaved roads measure. Both measures are currently being implemented but the emission reductions from them are not necessary for demonstrating RFP and attainment for the annual standard (general permit rule) and 24-hour standard (unpaved road measures).

Failure to make RFP or attain does not necessarily mean that new controls
must be adopted. Failure to make RFP

orattain canbe the result ofthe failure
to implement already committed to or adopted controls, delays in the implementation ofcontrol measures, and noncompliance. In these cases, correcting the implementation problem

ornoncompliance corrects the RFP or attainment failure.

There are a number ofbenefits to allowing and even encouraging the early implementation ofcontingency

measures. The chiefbenefit is thattheir emission reductions andthus their public health benefit are realized early. Another is that itallows states tobuild uncredited cushions into their attainment andRFP demonstrations, a cushion which makes actual failures to make progress or attain less likely.

Measures thathave already been implemented clearly meet the section 172(c)(9) requirement that contingency

measures take effect without further action by the State or Administrator.

Comment:ACLPI asserts thatthe Agricultural BMP general permit rule
cannot be used as a contingency

measure because it is not a "specific measure[ ]to be undertaken ifthe area fails to make reasonable further progress, or to attain the [NAAQS] * * *" and there is nothing in the rule that is triggered upon a showing of failure to make RFP. ACLPI quotes EPA guidance at 60 FR 56129 that "[c]ontingency measures should consist ofother control measures that are not part ofthe area's control strategy."

Response:Wenote thatthe Agricultural BMP general permit rule is

a contingency measure for the annual standard only. Emission reductions from the rule are not necessary to demonstrate RFP or expeditious attainment, and therefore, the rule is not part ofArizona's primary control strategy for attaining the annual standard. Emission reductions from the rule are necessary to demonstrate RFP and expeditious attainment ofthe 24- hour standard and the State chose a different measure, the unpaved road
measure, to serve asthe contingency

measure for the 24-hour standard.

Nothing in CAA section 172(c)(9) requires that contingency measure be triggered onlyifthere is a failure to make RFP orto attain. Contingency

measure must be undertaken ifthere is

afailure to make RFP or attain but the Act does notbar a state from using other triggers as areason to implement them,
e.g., a determination that the measure is needed for attainment of another standard or to meet another CAA requirement. This isthe case here; the BMP general permit rule is both needed for attainment ofthe 24-hour standard andto meet the CAA's BACM requirement.

Areas that must meet the BACM, MSM, and "attainment bythe earliest alternative date practicable" requirement are in a difficultposition when it comes to contingency measures. Adopted but unimplemented contingency measures are likelyto be feasible BACM and/orMSM. We discussed this dilemma in the proposed approval for the 24-hour standard at 24- hour standard proposal at 50279:

Certain core control measurerequirements such as RACM, BACM, and MSM mayresult ina state adopting and expeditiously implementing more measures thanare strictlynecessary for expeditious attainment and/orRFP. Because ofthis and because these corerequirements effectivelyrequire theimplementation ofallnon-trivial

measures that are technologically and economically feasible for the area, states are left withfew, ifany, substantive unimplemented control measures. Infact, under theAct's PM-10 planning provisions, ifthere were ameasure or set ofmeasures thatwere technologically and economically feasible and could collectively generate substantial emission reductions, e.g., one year's worth ofRFP, then a state would be hard pressedtojustifywithholding their implementation.

Ifwe readthe CAA to demandthat the only acceptable contingency measure are thosethat are adopted butnotimplemented, then states face adifficult choice: adopt the controls forimmediate implementation and clearly meet the core control measure requirements butfail the contingency

measurerequirement oradopt the control

measures buthold implementation in reserve tomeet the contingency measurerequirement but potentially failthe core control measure requirements.

However, states donotneed to face this difficult choice ifwe readthe CAA to allow adopted and implemented measures to serve
as contingency measures, provided thatthose measures' emission reductions are not neededto demonstrate expeditious attainment and/or RFP.There is nothingin thelanguage of section 172(c)(9) that prohibits this interpretation.

ACLPI cites as EPA guidance, our 1995 proposed approval ofthe moderate

area PM-10 SIP for the Yakima, Washington nonattainment area. This proposal, however, simply affirms our position here. In this case, Washington State used as a contingency measure for the Yakima area, a wood stovebuy back
program. Atthe time we proposed to approve it as a contingency measure, the
program hadbeen in operation for more thantwo years andhad already replaced 70 wood stoves. We proposed to approve it as a contingency measure because the emission reductions from the program were "100 percent overcontrol," thatis, not necessary for attainment. See60 FR 56129, 56132 (November 7, 1995). We finalizedthis approval at 63 FR 5269 (February 2, 1998). 

### 48732

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

V. FinalActions area PM-10 plan for the metropolitan

A. Approvalofthe Serious AreaPlan Phoenix area. For the annual standard: We are taking final action to approve the following elements ofthe serious

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

Base year emission inventory (section MAG plan, February 16, 2000

......................... Annual standard proposal at 19970.

172(c)(3)). Demonstration that the plan provides forthe implementation of RACM and BACM for each significant source category (sections 189(a)(1)(c) and 189(b)(1)(b)):

" On-road motor vehicles

........................... MAG plan, February 16, 2000

......................... Annual standard proposal at 19973 and 24- hour standard proposal at 50258. " Non-road motor vehicles

......................... MAG plan, February 16, 2000

......................... 24-hour standard proposal at 20260. " Paved road dust

...................................... MAG plan, February 16, 2000

......................... Annual standard proposal at 50274. " Unpaved parking lots

............................... MAG plan, February 16, 2000

......................... Annual standard proposal at 19976. " Disturbed vacant lots

............................... MAG plan, February 16, 2000

......................... Annual standard proposal at 19977. " Unpaved roads

........................................ MAG plan, February 16, 2000

......................... Annual standard proposal at 19978. " Construction activities and sites

.............. MAG plan, February 16, 2000

......................... 24-hour standard proposal at 50265. " Agriculture (BACM only)

.......................... BMP TSD, June 13, 2001

................................ 24-hour standard proposal at 50268. " Residential wood combustion

.................. MAG plan, February 16, 2000

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

......................... Annual standard proposal at 19982. Demonstration of the impracticability of attain- MAG plan, February 16, 2000

......................... Annual standard proposal 19984.

ment by 2001 where the State has applied for an attainment date extension under section 188(e) (section 189(b)(1)(A) (ii)). Demonstration of attainment by the most expe- MAG plan, February 16, 2000

......................... Annual standard proposal 19985.

ditious alternative date practicable (section 189(b)(1)(A) (ii)). Demonstration of reasonable further progress MAG plan, February 16, 2000

......................... Annual standard proposal 19988.

(section 172(c)(2)). Quantitative Milestones (section 189(c))

............ MAG plan, February 16, 2000

......................... Annual standard proposal 19988. Inclusion of the most stringent measures (sec- MAG plan, February 16, 2000 (except for ag- Annual standard proposal at 19984 (except

tion 188(e)). ricultural sources); BMP TSD, June 13, for agricultural sources); 24-hour standard 2001 (agricultural sources). proposal at 50268 (agricultural sources). Demonstration that major sources of PM-10 MAG plan, February 16, 2000

......................... Annual standard proposal 19971.

precursors such as nitrogen oxides and sulfur dioxide do not contribute significantly to violations (section 189(e)). Contingency measures (section 172(c)(9))

........ MAG plan, February 16, 2000 as revised by 24-hour standard proposal at 50279. BMP TSD, June 13, 2001. Transportation conformity budget (section MAG plan, February 15, 2000

......................... Annual standard proposal at 19970.

176(c)). Provisions for assuring adequate resources, MAG plan, February 16, 2000 (for all cat- Annual standard proposal at 19988 (except

personnel, and legal authority to carry out the egories for both standards except for agri- for agriculture sources), 24-hour standard plan (section 110(a)(2)(E)(i)). culture sources). proposal at 50280.

For the 24-hourstandard:

Base year emission inventory (section

172(c)(3)). Demonstration that the plan provides forthe implementation of RACM and BACM for each significant source category (sections 189(a)(1)(c) and 189(b)(1)(b)):

" On-road motor vehicles

...........................

" Non-road motor vehicles

......................... " P aved road dust

...................................... " Unpaved parking lots

............................... " Disturbed vacant lots

............................... " Unpaved roads

........................................ " Construction activities and sites

.............. " Agriculture (BACM only)

.......................... " Residential wood combustion

.................. " Secondary ammonium nitrate sources
.... Demonstration of the impracticability of attainment by 2001 where the State has applied for an attainment date extension under section 188(e) (section 189(b)(1)(A) (ii)). Demonstration of attainment by the most

expeditioius alternative date practicable (section 189(b)(1 )(A)(ii)). MAG plan, February 16, 2000

.........................

MAG plan, February 16, 2000

.........................
MAG plan, February 16, 2000

......................... MAG plan, February 16, 2000

......................... MAG plan, February 16, 2000

......................... MAG plan, February 16, 2000

......................... MAG plan, February 16, 2000

......................... MAG plan, February 16, 2000

......................... BM PTSD, June 13, 2001

................................ MAG plan, February 16, 2000

......................... MAG plan, February 16, 2000

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

TSD, June 13, 2001 (Gilbert and West Chandler).

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

TSD, June 13, 2001 (Gilbert and West Chandler). Annual standard proposal at 19970.

24-hour standard proposal at 50258 and

50259. 24-hour standard proposal at 50259. 24-hour standard proposal at 50260. 24-hour standard proposal at 50263. 24-hour standard proposal at 50263. 24-hour standard proposal at 50264. 24-hour standard proposal at 50265. 24-hour standard proposal at 50268. 24-hour standard proposal at 50271. 24-hour standard proposal at 50271. 24-hour standard proposal at 50273.

24-hour standard proposal at 50275. 

### 48733

HeinOnline -- 67 Fed. Reg. 48733 2002

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

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

Demonstration of reasonable further progress BMP TSD, June 13, 2001

................................ 24-hour standard proposal at 50278.

(section 172(c)(2)). Quantitative Milestones (section 189(c))

............ BMP TSD, June 13, 2001

................................ 24-hour standard proposal at 50279. Inclusion of the most stringent measures (sec- MAG plan, February 16, 2000 except for (ag- 24-hour standard proposal at 50274.

tion 188(e)). ricultural sources) BMP TSD, June 13, 2001 (agricultural sources). Demonstration that major sources of PM-10 MAG plan, February 16, 2000

......................... 24-hour standard proposal at 50257.

precursors such as nitrogen oxides and sulfur dioxide do not contribute significantly to violations (section 189(e)). Contingency measures (section 172(c)(9))

........ MAG plan, February 16, 2000 as revised by 24-hour standard proposal at 50279. BMP TSD, June 13, 2001. Transportation conformity budget (section MAG plan, February 15, 2000

......................... 24-hour standard proposal at 50256.

176(c)). Provisions for assuring adequate resources, MAG plan, February 16, 2000 (except for ag- 24-hour standard proposal at 50280.

personnel, and legal authority to carry out the riculture sources). plan (section 110(a)(2)(E)(i)).

B. Extension oftheAttainmentDate necessary requirements for granting an C.Approvals of Rules and extension ofthe attainment date under Commitments As authorized by CAA section 188(e), CAA section 188(e). See annual

we are granting Arizona's request for a standard proposal at 19988 and 24-hour We are also approving the following five-year extension of the date for standard proposal at 50278. The five- rules and commitments that we attaining both the annual and 24-hour year extension means that the statutory proposed for approval in the annual PM-10 standards. Our decision to grant attainment date for both standards in standard proposal at 65 FR 19964: the extension is based on our the Phoenix nonattainment area is now determination that the State has met the December 31, 2006.

Rule/commitment Submittal date (Date of adoption of revision)

MCESD Rule 310 (Revised February 16, 2000)

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

.......................................................................................... March 2, 2000. Maricopa County Residential Woodburning Ordinance (Revised November 17, 1999)

................................... January 28, 2000.

We are also approving numerous resolutions adopted in 1997, 1998, and 1999by the cities and town ofthe metropolitan Phoenix area as well asby the Arizona Department of Transportation, Regional Public Transportation Agency, and ADEQ. Finally, we are approving Maricopa County's commitments including the revised commitments adopted on December 19, 2001 and submitted on January 8, 2002.

CAA section 110(l) prohibits us from approving a revision to the applicable implementation plan ifthat revision would interfere with any applicable requirement concerning attainment and RFP or any other applicable requirement ofthe Act. We interpret section 110(l) to
mean, among other things, that we cannot approve a plan revision ifthat revision would mean that the state's plans would no longer provide for attainment or RFP as these are required by the CAA or ifthe revision would

23Because the woodbarning restrictions
ordinance is also a provision inthe State's carbon monoxide SIP,we have also considered the impact mean that the State's plans would no longer meet another applicable requirement ofthe Act.

We are revising the Arizona SIP to incorporate the amended Rule 310, Rule 310.01 and the Maricopa County Residential Woodburning Ordinance in place ofthe previous version ofRule 310 approved in August, 1997 and of the ordinance approved in November, 1999. In addition to the effect on attainment andRFP, the "other applicable requirement ofthe Act" that

we are concerned with here are the Act's requirements for implementation ofRACM and BACM and the inclusion in the plan ofMSM.

We are approving the expeditious attainment and RFP demonstrations for both PM-10 standards in the Phoenix serious area plan. These demonstrations

are in part dependent on approval ofthe revised Rule 310, Rule 310.01, and the woodburning ordinance.

We are also finding thatthe Phoenix serious area plan provides for the

on the CO plan ofapproving the revised version. The revision to the ordinance strengthens its PM10provisions but does not make changes to its CO implementation ofRACM and BACM and the inclusion ofthe MSM for the

sources subject to these rules and ordinance (construction sites, unpaved roads, unpaved parking lots, and disturbed vacant lands, andresidential wood burning). Again, these findings

are in large part dependent on approval ofthe revised Rule 310 and Rule 310.01. We, therefore, find thatthe approval of the revised Rule 310, Rule 310.01, and the Residential Woodburning Restrictions Ordinance will not interfere with Arizona PM-10 applicable implementation plan's compliance with the Clean Air Act's requirements for attainment, RFP, implementation of RACM and BACM, and inclusion of
MSM. 2 3

D. CorrectionofPreviousSIP Disapprovals

We are finding that Arizona has corrected the deficiencies that resulted in the following disapprovals:

provisions; therefore, its approval will notinterfere CO SIP's provisions for attainment, RFP, orRACM. 

### 48734

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

Disapproved element Date and cite of disapproval Correction

Implementation of RACM and BACM for unpaved roads, unpaved August 4, 1997 62 FR 41856, Approved RACM and BACM demparking lots, disturbed vacant lots, and agriculture (24-hour standard). 41862. onstration for the affected categories.1 Demonstration of attainment and RFP for the West chandler site (24- August 4, 1997 62 FR 41856, Approved attainment and RFP

hour standard). 41862. demonstration. Demonstration of attainment and RFP for the Gilbert site (24-hour)

...... August 4, 1997 62 FR 41856, Approved attainment and RFP 41862. demonstration. Implementation of RACM (annual standard)

........................................... August 3, 1998 63 FR 41326, Approved RACM demonstration. 41329. Demonstration of attainment (moderate area deadline, annual stand- August 3, 1998 63 FR 41326, Approved attainment demonstraard). 41329. tion.
1 We approved the RACM demonstration for agricultural sources on October 11, 2001 at 66 FR 51869.

The correction ofthe deficiencies that caused the last two listed disapprovals alsopermanently lifts the offset sanction currently imposed but stayed on the Phoenix area and ends the clock for imposition ofthe highway funding sanction.

The full approval ofthe metropolitan Phoenix serious area PM-10 plan also ends the FIP clock started by the February 6, 1998 finding thatthe State had failed to submit theplan by the required deadline. See 63 FR 9423 (February 23, 1998).

VI. Administrative Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is
not a "significant regulatory action" and therefore isnot subject toreview by the Office ofManagement and Budget. For this reason, this action is also not subject to Executive Order 32111, "Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, orUse" (66 FR 28355, May 22, 2001). This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by
state law. Accordingly, the Administrator certifies thatthis rule will not have a significant economic impact on asubstantial number of small entities under the Regulatory Flexibility Act (5U.S.C. 601 etseq.). Because this rule approves pre-existing requirements under state lawand does not impose
any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly oruniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (PublicLaw 104-4).

This rule also does not have tribal implications because itwill not have a substantial direct effect on one or more Indian tribes, on therelationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects onthe States,

onthe relationship between the national government and the States, or on the distribution ofpower and responsibilities amongthe various levels ofgovernment, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state plan and rules implementing a Federal standard, and does not alter therelationship or the distribution ofpower and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045, "Protection of Children from Environmental Health Risks and Safety Risks" (62 FR 19885, April 23, 1997), because itis not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that theymeet the criteria of the Clean Air Act. In this context, in the absence ofa prior existing requirement for the State touse voluntary consensus standards (VCS), EPAhas no authority
to disapprove aSIP submission for failure to use VCS. Itwould thus be inconsistent with applicable law for EPA, when itreviews a SIP submission,
to use VCS in place ofa SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements ofsection 12(d) ofthe National Technology Transfer and Advancement Act of1995 (15 U.S.C. 272 note) donot apply. This rule does
not impose an information collection burden under the provisions ofthe Paperwork Reduction Act of1995 (44 U.S.C. 3501 etseq.).

The Congressional Review Act, 5 U.S.C. section 801 etseq., as added by the Small Business Regulatory Enforcement Fairness Act of1996, 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 ofthe Congress and to the Comptroller General ofthe United States. EPA will submit areport containing this rule and other required information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to publication ofthe rule in the Federal Register.A major rule
cannot take effect until 60 days after it is published in the Federal Register. This action is not a "major rule" as defined by 5 U.S.C. section 804(2).

Under section 307(b)(1) ofthe Clean AirAct, petitions forjudicial review of this action must be filed in the United States Court ofAppeals for the appropriate circuit by September 23, 2002. Filing apetition for reconsideration by the Administrator of this final rule does not affect the finality ofthis rule for the purposes ofjudicial review nor does it extend the time within which a petition forjudicial review may be filed, and shall not postpone the effectiveness of suchrule

or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List ofSubjects in 40 CFR Part52

Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.

Dated:January 14, 2002. Wayne Nastri, Regional Administrator,Region9.

Part 52, chapter I, title 40 ofthe Code ofFederal Regulations is amended as follows:

PART 52-[AMENDED]

1. The authority citation for Part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 etseq. 

### 48735

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

Subpart D-Arizona

2. Section 52.120 is amendedby addingparagraphs (c)(99), (100), (101), and (102) toread as follows:

§52.120 Identification of plan.

(c) * * * (99) Plan revisions submitted on January 28, 2000by the Governor's designee.

(i) Incorporation byreference. (A)Maricopa County, Arizona. (1)Residential Woodburning Restriction Ordinance adopted on November 17, 1999. (100) Plan revisions submitted on February 16, 2000 by the Governor's designee.

(i) Incorporation byreference. (A)Maricopa Association of Governments, Maricopa County, Arizona. (1)Resolution to Adopt the Revised MAG 1999 Serious Area Particulate Plan for PM-10 for the Maricopa County Nonattainment Area (includingExhibit A, 2pages), adopted on February 14, 2000.

(B) City ofAvondale, Arizona. (1)Resolution No. 1711-97; A Resolution ofthe City Council ofthe City ofAvondale, Maricopa County, Arizona, To Implement Measures in the MAG 1997 Serious Area Particulate Plan for PM-10 and MAG 1998 Serious Area Carbon Monoxide Plan for the Maricopa County Area (includingExhibit A, 14 pages), adopted on September 15, 1997. (2)Resolution No. 1949-99; A Resolution ofthe Council ofthe City of Avondale, Maricopa County, Arizona, Implementing Measures in the MAG 1998 Serious Area Particulate Plan for PM-10 for the Maricopa County Area (includingExhibit A, 7pages), adopted

onFebruary 16, 1999.

(C) Town ofBuckeye, Arizona. (1)Resolution No. 15-97; A Resolution ofthe Town Council ofthe Town ofBuckeye, Maricopa County, Arizona, To Implement Measures in the MAG 1997 Serious Area Carbon Monoxide Plan for the Maricopa County Area (includingExhibit A, 5pages), adopted on October 7, 1997.

(D) Town ofCarefree, Arizona. (1)Town ofCarefree Resolution No. 97-16; A Resolution ofthe Mayor and Common Council ofthe Town of Carefree, Arizona, To Implement Measures in the MAG 1997 Serious Area Particulate Plan for PM-10 and MAG 1998 Serious Area Carbon Monoxide Plan for the Maricopa County Area (includingExhibit A, 3pages), adopted

on September 2, 1997.

(2)Town ofCarefree Resolution No. 98-24; A Resolution ofthe Mayor and Common Council ofthe Town of Carefree, Arizona, To Implement Measures in the MAG 1998 Serious Area Particulate Planfor PM-10 for the Maricopa County Area (including Exhibit A, 4pages), adopted on September 1, 1998.

(3)Town ofCarefree Ordinance No. 98-14; An Ordinance ofthe Town of Carefree, Maricopa County, Arizona, Adding Section 10-4 tothe Town Code Relating to Clean-Burning Fireplaces, Providing Penalties for Violations (3 pages), adopted on September 1, 1998. (E) Town ofCave Creek, Arizona. (1)Resolution R97-28; AResolution ofthe Mayor and Town Council ofthe Town ofCave Creek,Maricopa County, Arizona, Implementing Measures in the MAG 1997 Serious Area Particulate Plan for PM-10 and MAG 1998 Serious Area Carbon Monoxide Plan for the Maricopa County Area (includingExhibit A, 4 pages), adopted on September 2, 1997. (2)Resolution R98-14; AResolution ofthe Mayor and Town Council ofthe Town ofCave Creek,Maricopa County, Arizona, To Implement Measures in the MAG 1998 Serious Area Particulate Plan for PM-10 for the Maricopa County Area (includingExhibit A, 1page), adopted onDecember 8, 1998.

(F)City ofChandler, Arizona. (1)Resolution No. 2672; AResolution ofthe City Council ofthe City of Chandler, Arizona To Implement Measures in the MAG 1997 Serious Area Particulate Planfor PM-10 and MAG 1998 Serious Area Carbon Monoxide Plan for the Maricopa County Area (includingExhibit A, 16 pages), adopted

onAugust 14, 1997.

(2) Resolution No. 2929; AResolution ofthe City Council ofthe City of Chandler, Arizona, To Implement Measures in the MAG 1998 Serious Area Particulate Planfor PM-10 for the Maricopa County Area (including Exhibit A, 9 pages), adopted onOctober 8, 1998.

(G)City ofEl Mirage, Arizona. (1)Resolution No. R97-08-20; Resolution To Implement Measures in the MAG 1997 Serious Area Particulate Plan for PM-10 and MAG 1998 Serious Area Carbon Monoxide Plan for the Maricopa County Area (including Exhibit A, 8 pages), adopted onAugust 28, 1997.

(2)Resolution No. R98-08-22; A Resolution ofthe Mayor and Common Council ofthe City ofEl Mirage, Arizona, Amending Resolution No. R98-02-04 To Implement Measures in the MAG 1997 Serious Area Particulate Plan for PM-10 for the Maricopa County Area (includingExhibit A, 5pages), adopted onAugust 27,1998. (3)Resolution No. R98-02-04; A Resolution To Implement Measures in the MAG 1997 Serious AreaParticulate Planfor PM-10 for the Maricopa County Area (includingExhibit A, 5pages), adopted on February 12,1998.

(H) Town ofFountain Hills, Arizona. (1)Resolution No. 1997-49; A Resolution ofthe CommonCouncil of the Town ofFountain Hills, Arizona, Adopting the MAG 1997 Particulate Planfor PM-10 and MAG 1998 Serious AreaCarbon Monoxide Plan for the Maricopa County Area and Committing
to Certain Implementation Programs (includingExhibit B, 5pages and cover), adopted on October 2, 1997.

(2)Town ofFountain Hills Resolution No. 1998-49; Resolution To Implement Measures in the MAG 1998 Serious Area Particulate Plan forPM-10 for the Maricopa County Area (including Exhibit A, 7pages), adopted on October 1, 1998. [IncorporationNote: Incorporated materials are pages 4 to 10 ofthe 11-page resolution package; pages 1 and 2 are cover sheets with no substantive content andpage 11 is a summary ofmeasures previously adoptedby the Town ofFountain Hills.]

(I) Town ofGilbert, Arizona. (1)Resolution No. 1817; A Resolution ofthe Common Council ofthe Town of Gilbert, Maricopa County, Arizona, Authorizing the Implementation ofthe MAG 1997 Serious Area Particulate Plan for PM-10 and the MAG Serious Area Carbon Monoxide Plan for the Maricopa County Area (including 15 pages of attached material), adopted on June 10, 1997.

(2)Resolution No. 1864; A Resolution ofthe Common Council ofthe Town of Gilbert, Arizona, Implementing Measures in the MAG 1997 Serious Area Particulate Plan forPM-10 for the Maricopa County Area (including Attachment A, 5pages), adopted on November 25, 1997. [Incorporation
note: Attachment Ais referred to as Exhibit A inthe text ofthe Resolution.]

(3) Ordinance 1066; An Ordinance of the Common Council ofthe Town of Gilbert, Arizona Amending the Code of Gilbertby Amending Chapter 30 Environment,by adding New Article II Fireplace RestrictionsPrescribing Standards forFireplaces, Woodstoves, and Other Solid-Fuel Burning Devices in New Construction; Providing for an Effective Date ofJanuary 1, 1999; Providing forRepeal ofConflicting Ordinances; Providing for Severability (3pages), adopted on November 25, 1997.

(4) Resolution No. 1939: A Resolution ofthe Common Council ofthe Town of Gilbert, Arizona, Expressing its Commitment to Implement Measures in 

### 48736

HeinOnline -- 67 Fed. Reg. 48736 2002

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

the Maricopa Association of Governments (MAG) 1998 Serious Area Particulate Plan for PM-10 for the Maricopa County Area (including Attachment A, 5pages), adopted onJuly 21, 1998. [Incorporation note: Attachment A is referred to as Exhibit A in the text ofthe Resolution.] (J)City of Glendale, Arizona. (1)Resolution No. 3123 New Series; A Resolution ofthe Council ofthe City of Glendale, Maricopa County, Arizona, Implementing Measures in the MAG 1997 Serious Area Particulate Plan for PM-10 and MAG 1998 Serious Area Carbon Monoxide Plan for the Maricopa County Area (includingExhibit A, 20 pages), adopted onJune 10, 1997. (2) Resolution No. 3161 New Series; A Resolution ofthe Council ofthe City of Glendale, Maricopa County, Arizona, Implementing Measures in the MAG 1997 Serious Area Particulate Plan for PM-10 for the Maricopa County Area (includingExhibit A, 6 pages), adopted

on October 28, 1997.

(3) Resolution No. 3225 New Series; A Resolution ofthe Council ofthe City of Glendale, Maricopa County, Arizona, Implementing Measures in the MAG 1998 Serious Area Particulate Plan for PM-10 for the Maricopa County Area (includingExhibit A, 9 pages), adopted

onJuly 28, 1998.

(K)City ofGoodyear, Arizona. (1)Resolution No. 97-604 Carbon Monoxide Plan; A Resolution ofthe Council ofthe City ofGoodyear, Maricopa County, Arizona, Implementing Measures in the MAG 1997 Serious Area Particulate Plan for PM-10 and MAG 1998 Serious Area Carbon Monoxide Plan for the Maricopa County Area (includingExhibit A, 21 pages), adopted on September 9. [Incorporationnote: Adoption year not given onthe resolution but is understood to be 1997based on resolution number.] (2) Resolution No. 98-645; A Resolution ofthe Council ofthe City of Goodyear, Maricopa County, Arizona, Implementing Measures in the MAG 1998 Serious Area Particulate Plan for PM-10 for the Maricopa County Area (includingAttachment III, 7pages), adopted onJuly 27, 1998.

(L) City ofMesa, Arizona. (1)Resolution No. 7061; AResolution ofthe City Council ofthe City ofMesa, Maricopa County, Arizona, to Implement Measures in the MAG 1997 Serious Area Particulate Plan for PM-10 andMAG 1998 Serious Area Carbon Monoxide Plan for the Maricopa County Area (includingExhibit A, 13 pages plus index page), adopted on June 23, 1997. (2) Resolution No. 7123; AResolution ofthe City Council ofthe City ofMesa, Maricopa County, Arizona, to Implement Measures in the MAG 1997 Serious Area Particulate Plan for PM-10 for the Maricopa County Area (includingExhibit A, 10 pages), adopted

onDecember 1, 1997.

(3) Resolution No. 7360; AResolution ofthe City Council ofthe City ofMesa, Maricopa County, Arizona, to Implement Measures in the MAG Serious Area Particulate Plan for PM-10 for the Maricopa County Area (includingExhibit A, 8 pages), adopted

onMay 3, 1999.

(4) Ordinance No. 3434; An Ordinance ofthe City Council ofthe City ofMesa, Maricopa County, Arizona, Relating toFireplace Restrictions Amending Title 4, Chapter 1, Section 2Establishing aDelayed Effective Date; andProviding Penalties for Violations (3pages), adopted on February 2, 1998. (M)Town ofParadise Valley, Arizona. (1)Resolution Number 913; A Resolution ofthe Town ofParadise Valley, to Implement Measures in the MAG 1997 Serious Area Particulate Plan for PM-10 and MAG 1998 Serious Area Carbon Monoxide Plan for the Maricopa County Area (includingExhibit A, 9 pages), adopted on October 9, 1997. (2) Resolution Number 945; A Resolution ofthe Mayor and Town Council ofthe Town ofParadise Valley, Arizona, to Implement Measures in the MAG 1998 Serious Area Particulate Plan for PM-10 for the Maricopa County Area (includingExhibit A, 5pages), adopted onJuly 23, 1998.

(3) Ordinance Number 454; An Ordinance ofthe Town ofParadise Valley, Arizona, Relating to Grading and Dust Control, Amending Article 5-13 of the Town Code and Sections 5-13-1 Through 5-13-5, Providing Penalties for Violations and Severability (5pages), adopted onJanuary 22, 1998. [Incorporationnote: There is an error in the ordinance's title, ordinance amended only sections 5-13-1 to 5-13- 4; see section 1 ofthe ordinance.] (4) Ordinance Number 450; An Ordinance ofthe Town ofParadise Valley, Arizona, Adding Section 5-1-7
to the Town Code Relating to CleanBurning Fireplaces, Providing Penalties for Violations (3pages), adopted on December 18, 1997. (N) City ofPeoria, Arizona. (1)Resolution No. 97-37; A Resolution ofthe Mayor and Council of the City ofPeoria, Arizona, to Implement Measures in the MAG 1997 Serious Area Particulate Plan for PM-10 andMAG 1998 Serious Area Carbon Monoxide Plan for the Maricopa County Area (includingExhibits A, 5pages, and B, 19 pages), adopted on June 17, 1997. (2) Resolution No. 97-113; A Resolution ofthe Mayor andCouncil of the City ofPeoria, Arizona, to Implement Measures inthe MAG 1997 Serious Area Particulate Plan for PM-10 for the Maricopa County Area and Directing the Recording ofThis Resolution with the Maricopa County Recorder and Declaring an Emergency (includingExhibit A, 8 pages plus index page), adopted on October 21, 1997.

(3) Resolution No. 98-107; A Resolution ofthe Mayor andCouncil of the City ofPeoria, Arizona, to Approve and Authorize the Acceptance to Implement Measures inthe MAG 1998 Serious Area Particulate Plan for PM-10 for the Maricopa County Area (includingExhibit A, 7pages), adopted

onJuly 21, 1998.

(0) City ofPhoenix, Arizona. (1)Resolution No. 18949; A Resolution Stating the City's Intent to Implement Measures to Reduce Air Pollution (includingExhibit A, 19 pages), adopted onJuly 2, 1997.

(2) Resolution No. 19006; A Resolution Stating the City's Intent to Implement Measures to Reduce Air Pollution (includingExhibit A, 13 pages), adopted on November 19, 1997.

(3) Ordinance No. G4037; An Ordinance Amending Chapter 39, Article 2, Section 39-7 ofthe Phoenix City Code by Adding Subsection G Relating to Dust Free Parking Areas; and Amending Chapter 36, Article XI, Division I, Section 36-145 ofthe Phoenix City Code Relating to Parking

on Non-Dust Free Lots, adopted onJuly 2, 1997 (5 pages).

(4) Resolution No. 19141; A Resolution Stating the City's Intent to Implement Measures to Reduce Particulate AirPollution (including Exhibit A, 10 pages), adopted on September 9, 1998.

(5) Ordinance No. G4062; An Ordinance Amending the Phoenix City Code By Adding A New Chapter 40 "Environmental Protections," By Regulating Fireplaces, Wood Stoves and Other Solid-Fuel Burning Devices and Providing thatthe Provisions ofthis Ordinance ShallTake Effect on December 31, 1998 (5pages), adopted

on December 10, 1997.

(P) Town of Queen Creek,Arizona. (1)Resolution 129-97; A Resolution ofthe Town Council ofthe Town of Queen Creek, Maricopa County, Arizona
to Implement Measures in the MAG 1997 Serious Area Particulate Plan for PM-10 and MAG 1998 Serious Area Carbon Monoxide Plan for the Maricopa County Area (includingExhibit A, 3 pages), adopted onJune 4, 1997.

(2) Resolution 145-97; A Resolution ofthe Town Council ofthe Town of 

### 48737

HeinOnline -- 67 Fed. Reg. 48737 2002

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

Queen Creek,Maricopa County, Arizona
to Implement Measures in the MAG 1997 Serious Area Particulate Plan for PM-10 for the Maricopa County Area (includingExhibit A, 1page), adopted

onNovember 5, 1997.

(3) Resolution 175-98; AResolution ofthe Town Council ofthe Town of Queen Creek,Maricopa County, Arizona
to Implement Measures in the MAG 1998 Serious Area Particulate Plan for the Maricopa County Area (including Exhibit A, 9 pages), adopted on September 16, 1998.

(Q) City ofScottsdale, Arizona. (1)Resolution No. 4864; AResolution ofthe City ofScottsdale, Maricopa County, Arizona, To Implement Measures in the MAG 1997 Serious Area Particulate Plan for PM-10 and MAG 1998 Serious Area Carbon Monoxide Plan for the Maricopa County Area: Stating the Council's Intent to Implement Certain Control Measures Contained in that Plan (including Exhibit A, 21 pages), adopted on August 4, 1997. (2) Resolution No. 4942; Resolution of the Scottsdale City Council To Implement Measures in the MAG 1997 Serious Area Particulate Plan for PM-10 for the Maricopa County Area (includingExhibit A, 13 pages), adopted

onDecember 1, 1997.

(3) Resolution No. 5100; AResolution ofthe City ofScottsdale, Maricopa County, Arizona, To Strengthen Particulate Dust Control and Air Pollution Measures in the Maricopa County Area (includingExhibit A, 10 pages), adopted onDecember 1, 1998. (R) City ofSurprise, Arizona. (1)Resolution No. 97-29; A Resolution to Implement Measures in the MAG 1997 Serious Area Particulate Plan for PM-10 and MAG 1998 Serious Area Carbon Monoxide Plan for the Maricopa County Area (including Exhibit A, 4pages), adopted on June 12, 1997.

(2) Resolution No. 97-67; A Resolution to Implement Measures in the MAG 1997 Serious Area Particulate Plan for PM-10 for the Maricopa County Area (includingExhibit A, 3pages), adopted on October 23, 1997.

(3) Resolution No. 98-51; A Resolution to Implement Measures in the MAG 1997 Serious Area Particulate Plan for PM-10 for the Maricopa County Area (includingExhibit A, 6 pages), adopted on September 10, 1998.

(s) City ofTempe, Arizona. (1)Resolution No. 97.39; Resolution
to Implement Measures in the MAG 1997 Serious Area Particulate Plan for PM-10 and MAG 1998 Serious Area Carbon Monoxide Plan for the Maricopa County Area (includingExhibit A, 18 pages), adopted onJune 12, 1997. (2) Resolution No. 97.71, Resolution ofthe Council ofthe City ofTempe Stating Its Intent to Implement Measures in the MAG 1997 Serious Area Particulate Planfor PM-10 for the Maricopa County Area (including Exhibit A, 6 pages), adopted on November 13, 1997. (3) Resolution No. 98.42, Resolution ofthe Council ofthe City ofTempe Implementing Measures in the MAG 1998 Serious Area Particulate Plan for PM-10 for the Maricopa County Area (includingExhibit A, 8 pages), adopted

on September 10, 1998.

(T) City ofTolleson, Arizona. (1)Resolution No. 788, AResolution ofthe Mayor and City Council ofthe City ofTolleson, Maricopa County, Arizona, Implementing Measures in the Maricopa Association ofGovernments (MAG) 1997 Serious Area Particulate Plan for PM-10 and MAG 1998 Serious Area Carbon Monoxide Plan for the Maricopa County Area (including Exhibit A, 12 pages), adopted onJune 10, 1997.

(2) Resolution No. 808, AResolution ofthe Mayor and City Council ofthe City ofTolleson, Maricopa County, Arizona, Implementing Measures in the Maricopa Association ofGovernments (MAG) 1998 Serious Area Particulate Plan for PM-10 for the Maricopa County Area (includingExhibit A), adopted on July 28, 1998. (3) Ordinance No. 376, N.S., An Ordinance ofthe City ofTolleson, Maricopa County, Arizona, Amending Chapter 7ofthe Tolleson City Code by Adding a New Section 7-9, Prohibiting the Installation orConstruction of a Fireplace orWood Stove Unless It Meets the Standards Set Forth Herein (includingExhibit A, 4 pages), adopted

onDecember 8, 1998.

(U) Town ofWickenburg, Arizona. (1)Resolution No. 1308, Resolution To Implement Measures in the MAG 1997 Serious Area Particulate Plan for PM-10 and MAG 1998 Serious Area Carbon Monoxide Plan for the Maricopa County Area (includingExhibit A, 4 pages), adopted onAugust 18, 1997. (V)Town ofYoungtown, Arizona. (1)Resolution No. 97-15, Resolution To Implement Measures in the MAG 1997 Serious Particulate Plan for PM-10 andMAG 1998 Serious Area Carbon Monoxide Plan for the Maricopa County Area (includingExhibit A, 4 pages), adopted on September 18, 1997.

(2) Resolution No. 98-15: Resolution To Implement Measures in the MAG 1998 Serious Area Particulate Plan for PM-10 for the Maricopa County Area (includingExhibit A, 8 pages), adopted

on August 20, 1998.

(3) Resolution No 98-05: Resolution Stating Intent toWork Cooperatively with Maricopa County to Control the Generation ofFugitive Dust Pollution (includingExhibit A, 2pages), adopted February 19, 1998.

(W)Maricopa County, Arizona. (1)Resolution to Implement Measures in the MAG 1997 Serious Area Particulate Plan forPM-10 and MAG 1A998 Serious Area CarbonMonoxide Planfor the Maricopa County Area (includingExhibit A, 16 pages), adopted

onJune 25, 1997. [Incorporation note: "1A998" error in the original.]

(2) Resolution to Implement Measures in the MAG 1997 Serious Area Particulate Plan forPM-10 for the Maricopa County Area (including Exhibit A, 9 pages), adopted on November 19, 1997.

(3) Resolution to Implement Measures in the MAG 1998 Serious Area Particulate Plan forPM-10 for the Maricopa County Area (including Exhibit A, 10 pages), adopted on February 17, 1999.

(4) Resolution to Implement Measures in the MAG 1999 Serious Area Particulate Plan forPM-10 for the Maricopa County Area (including Exhibit A, 10 pages), adopted on December 15, 1999.

(X) Arizona Department of Transportation, Phoenix, Arizona.

(1)Resolution to Implement Measures in the MAG 1997 Serious Area Particulate Plan forPM-10 and MAG 1998 Serious Area Carbon Monoxide Planfor the Maricopa County Area (includingExhibit A, 24 pages plus index page), adopted onJune 20, 1997.

(2) Resolution to Implement Measures in the MAG 1998 Serious Area Particulate Plan forPM-10 for the Maricopa County Area (including Exhibit A, 8 pages), adopted onJuly 17, 1998.

(Y) Regional Public Transportation Authority, Phoenix, Arizona.

(1)Resolution #9701: Resolution to Implement Measures inthe MAG 1997 Serious Area Particulate Plan for PM-10 and MAG 1998 Serious Area Carbon Monoxide Plan for the Maricopa County Area (includingExhibit A, 23 pages), adopted onJune 12, 1997.

(Z) State ofArizona. (1)Arizona Revised Statute Section 49-542(F)(7) as added in Section 31 of Arizona Senate Bill 1002, 42nd Legislative Session, 7th Special Session (1996), approved by the Governor July 18, 1996.

(101) Plan revisions submitted on March 2, 2000, by the Governor's designee. 

### 48738

HeinOnline -- 67 Fed. Reg. 48738 2002

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

(i) Incorporation byreference. (A)Maricopa County Environmental Services Department.

(1)Rule 310 revised on February 16, 2000.

(2) Rule 310.01 adopted onFebruary 16, 2000.

(3)Appendix C revised on February 16, 2000.

(102) Plan revisions submitted on January 8, 2002, by the Governor's designee.

(i) Incorporation byreference. (1)Maricopa County, Arizona. (1)Resolution toUpdate Control Measure 6 in the Revised MAG 1999 Serious Area Particulate Plan for PM-10 for the Maricopa County Area (includingExhibit A, 2pages), adopted

onDecember 19, 2001.

3. Section 52.123 is amendedby removing and reserving paragraph (f)(1)(i)and adding paragraph (j)to read

as follows:
§52.123 Approvalstatus.

(j)The Administrator is approving the following elements ofthe Metropolitan Phoenix PM-10 Nonattainment Area Serious Area PM-10 Plan as contained in RevisedMaricopa Associationof Governments1999 SeriousArea Particulate Plan forPM-I0forthe MaricopaCountyNonattainment Area, February 2000, submitted February 16, 2000 and MaricopaCountyPM-I0 SeriousArea StateImplementationPlan Revision,AgriculturalBestManagement Practices(BMP),ADEQ,June 2000, submitted onJune 13, 2001:

(1) 1994 Base year emission inventory pursuant to Clean Air Act section 172(c)(3).

(2)The Provisions for implementing

on all significant source categories reasonably available control measures (except for agricultural sources) and best available control measures for the annual and 24-hour PM-10 NAAQS pursuant to section Clean Air Act sections 189(a)(1)(c) and 189(b)(1)(b)).

(3)The demonstration ofthe impracticability of attainment by December 31, 2001 for the annual and 24-hour PM-10 NAAQS pursuant to Clean Air Act section 189(b)(1)(A)(ii). (4) The demonstration ofattainment by the most expeditious alternative date practicable for the annual and 24-hour PM-10 NAAQS pursuant to Clean Air Act section 189(b)(1)(A)(ii). (5)The demonstration ofreasonable further progress for the annual and 24- hour PM-10 NAAQS pursuant to Clean Air Act section 172(c)(2). (6) The quantitative milestones for the annual and 24-hour PM-10 NAAQS pursuant to CleanAir Act section 189(c).

(7)The inclusion ofthe most stringent

measures for the annual and 24-hour PM-10 NAAQS pursuant to Clean Air Act section 188(e).

(8) The demonstration that major

sources ofPM-10 precursors do not contribute significantly to violations for the annual and 24-hour PM-10 NAAQS pursuant to CleanAir Act section 189(e).

(9) The contingency measures for the annual and 24-hour PM-10 NAAQS pursuant to CleanAir Act section 172(c)(9).

(10) The transportation conformity budget for the annual and 24-hour PM10 NAAQS pursuant to Clean Air Act section 176(c).

(11) The provisions for assuring adequate resources, personnel, and legal authority to carry out the plan for the annual and 24-hour PM-10 NAAQS pursuant to CleanAir Act section 110(a)(2)(E)(i). §52.124 [Amended]

4. Section 52.124 is amended by removing and reserving paragraphs (b) and (c). [FR Doc. 02-18171 Filed 7-24-02; 8:45 am]

BILLING CODE 6560-50-P 

### 48739

HeinOnline -- 67 Fed. Reg. 48739 2002