+(,121/,1(

Citation: 71 Fed. Reg. 44920 2006 

Content downloaded/printed from 

HeinOnline (http://heinonline.org)

Wed Jul 11 18:06:36 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. 71, No. 152 / Tuesday, Augustl 8, 2006/Rules and Rbgidations

(iii) The applicable further provisions

of this section and §§ 3.1601 through

3.1610.

(2) For claims filed before December

16, 2003: * * * * *

* 16. Amend § 3.1604 by:

m a. Revising the authority citation at

the end of paragraph (c).

I b. Revising paragraph (d)(1)(i).

mc. Adding paragraph (d)(5) following

the authority citation at the end of

paragraph (d)(4).

The revisions and addition read as

follows:

§3.1604 Payment from non-Department of

Veterans Affairs sources.

(c) * * *

(Authority: 38 U.S.C. 2303(b)(1)).

(d) ***

(i) The plot or interment allowance is

payable based on the deceased veteran's

eligibility for burial in a national

Cemetery (or, in claims filed prior to

December 16, 2003, the deceased

veteran's service). See § 38.620 of this

chapter.

* * * * *

(5) A plot or interment allowance may

be paid to a state in addition to a burial

allowance under § 3.1600(a) for claims

filed on or after December 16, 2003.

[FR Doc. E6-12787 Filed 8-7-06; 8:45 am]

BILLING CODE 8320-01-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 81

[EPA-R09-OAR-2006-AZ-0388; FRL-8206-

4]

Approval and Promulgation of

Implementation Plans; Designation of

Areas for Air Quality Planning

Purposes; State of Arizona; Finding of

Attainment for RIllito Particulate Matter

of 10 Microns or Less (PM10 )

Nonattainment Area; Determination

Regarding Applicability of Certain

Clean Air Act Requirements;

Correction

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is taking direct final

action to determine that the Rillito

moderate PM10 nonattainment area in

Arizona attained the National Ambient

Air Quality Standards for particulate

matter with an aerodynamic diameter

less than or equal to a nominal I6

micrometers (PMo) by the applicable

attainment date. EPA also finds that the

Rillito area is currently attaining the

PMo standards, and based on this latter

finding, EPA is determining that certain

Clean Air Act requirements are not

applicable for so long as the Rillito area

continues to attain the PM1 standards.

Lastly, EPA is correcting an error in a

previous rulemaking that involved the

classification of PMjo nonattainment

areas within the State of Arizona.

DATES: This rule is effective on October

10, 2006, without further notice, unless

EPA receives adverse comments by

September 7, 2006. If adverse comment

is received, EPA will publish a timely

withdrawal of the direct final rule in the

Federal Register informing the public

that the rule will not take effect.

ADDRESSES: Submit your comments,

identified by Docket I) No. EPA-R09-

OAR-2006-AZ-0388 by one of the

following methods:

* Federal eRulemaking portal: http://

www.regulations.gov. Follow the on-line

instructions for submitting comments.

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

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

the individual listed in the FOR FURTHER

INFORMATION CONTACT if you are faxing

comments).

* Mail: Wienke Tax, Office of Air

Planning, Environmental Protection

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

California 94105-3901.

* Hand Delivery: Wienke Tax, Office

of Air Planning, Environmental

Protection Agency (EPA), Region 9,

Mailcode AIR-2, 75 Hawthorne Street,

San Francisco, California 94105-3901.

Such deliveries are only accepted

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

p.m., excluding Federal holidays.

Special arrangements should be made

for deliveries of boxed information.

-Instructions: Direct your comments to

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

AZ-0388. EPA's policy is that all

comments received will be included in

the public docket without change and

-may be made available online at

http://www.regulations.gov, including

any personal information provided,

unless the comment includes

information claimed to be Confidential

Business Information (CBI) or other

information whose disclosure is

restricted by statute. Do not submit

information that you consider to be CBI

or otherwise protected through http://

www.regulations.gov or e-mail. The

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

an "anonymous access" system, which

means EPA will not know your identity

or contact information unless you

provide it in the body of your comment.

If you send an e-mail comment directly

to EPA, without going through http://

ivww.regulations.gov, your e-mail

address will be automatically captured

and included as part of the comment

that is placed in the public docket and

made available on the Internet. If you

submit an electronic comment, EPA

recommends that you include your

name and other contact information in

the body of your comment and with any

disk or CD-ROM you submit. If EPA

cannot read your comment due to

technical difficulties and cannot contact

you for clarification, EPA may not be

able to consider your comment.

Electronic files should avoid the use of

special characters" any form of

encryption, and be free of any defects or

viruses. For additional information

about EPA's public docket visit the EPA

Docket Center homepage at http://

www. epa.gov/epahome/dockets.h tm.

Docket: All documents in the docket

are listed in the http://

www.regulations.gov index. Although

listed in the index, some information is

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

information whose disclosure is

restricted by statute. Certain other

material, such as copyrighted material,

will be publicly available only in hard

copy form. Publicly available docket

materials are available either

electronically in http://

www.regulations.gov or in hard copy atthe Office of Air Planning,

Environmental Protection Agency

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

Hawthorne Street, San Francisco,

California 94105-3901. EPA requests

that if at all possible, you contact the

individual listed in the FOR FURTHER

INFORMATION CONTACT section to view

the hard copy of the docket. You may

view the hard copy of the docket

Monday through Friday, 8 a.m. to 4

p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Wienke Tax, Office of Air Planning,

Environmental Protection Agency

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

Hawthorne Street, San Francisco,

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

tax. wienke@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document, wherever

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

the EPA.

Table of Contents

I. Background

A. What National Ambient Air Quality

Standards (NAAQS) Are Considered In

Today's Finding? . B. What Is The Designation and

Classification of This PM1o

Nonattainment Area?

44920

HeinOnline -- 71 Fed. Reg. 44920 2006
Federal Register / Vol. 71, No. 152 /Tuesday, August 8, 2006/Rules and-.Regulation

C. How Do We Make Attainment, Determinations?

H. What Is The Basis for EPA's Determination

That the Rillito Area Has Attained The

PM1o NAAQS?

III. What Are the Applicable Planning

Requirements For the Rillito Area as a

Result of EPA's Attainment

Determination?

IV. EPA's Final Action

V. Statutory and Executive Order Reviews

I. Background

A. What National Ambient Air Quality

Standards (NAAQS) Are Considered In

Today's Finding?

National Ambient Air Quality

Standards (NAAQS) are safety

thresholds for certain ambient air

pollutants set by EPA to protect public

health and welfare. Particulate matter

with an aerodynamic diameter of less

than or equal to 10 micrometers, or

PM1o, is the subject of this action. PM1o

is among the ambient air pollutants for

which EPA has established health-based

standards.

PMo causes adverse health effects by

penetrating deep in the lungs,

aggravating the cardiopulmonary

system. Children, the elderly, and

people with asthma and heart

conditions are the most vulnerable.

On July 1, 1987 (52 FR 24634), EPA

revised the NAAQS for particulate

matter with an indicator that.includes

only those particles with an

aerodynamic diameter less than or equal

to a nominal 10 micrometers. See 40

CFR 50.6. The 24-hour primary PM10

standard is 150 micrograms per cubic

meter (gg/m3) with no more than one

expected exceedance per year. The

annual primary PM1o standard is 50 gg/

m3 as an annual arithmetic mean. The

secondary PM1o standards, promulgated

to protect against adverse welfare

effects, are identical to the primary

standards.

B. What Is the Designation and

Classification of This PMo

Nonattainment Area?

Upon enactment of the 1990 Clean Air

Act Amendments (CAA or the Act),

PM1o areas meeting the requirements of

either (i) or (ii) of section 107(d)(4)(B) of

the Act were designated nonattainment

for PM1o by operation of law and

classified "moderate." These areas

included all former Group I PMo

planning areas identified in 52 FR

29383 (August 7, 1987) and further

clarified in 55 FR 45799 (October 31,

1990), and any other areas violating the

NAAQS for PM10 prior to January .1,

1989 (many of these areas were

identified by footnote 4 in the October

31, 1990 Federal Register document). A

Federal Register notice announcing the

areas designated nonattainment for

PM10 upon enactment of the 1990 Act

Amendments, known as "initial' PMo

nonattaihment areas, was published on

March 15, 1991,(56 FR 11101). A

subsequent Federal Register document

correcting some of these areas was

published on August 8, 1991 (56 FR

37654). These nonattainment

designations and moderate area

classifications were codified in 40 CFR

part 81 in a Federal Register document

published on November 6, 1991 (56 FR

56694). All other areas in the nation not

designated nonattainment at enactment

were designated unclassifiable (see

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

The Rillito planning area was amongthe areas listed by EPA as a Group I area

(see 52 FR 29383, August 7, 1987) and

was designated nonattainment for PMo

by operation of law and classified

"moderate." In accordance with section

189(a)(2) of the CAA, Arizona was to

submit a state implementation plan

(SIP) by November 15, 1991

demonstrating attainment of the PMo

standards by December 31, 1994 for the

Rillito area.'

C. How Do We Make Attainment

Determinations?

Pursuant to sections 179(c)(1) and

188(b)(2) of the Act, we have the

responsibility of determining within six

months of the applicable attainment

date whether, based on air quality data,

PM10 nonattainment areas attained the

NAAQS by that date. The "applicable

attainment date" is December 31, 1994

for areas, such as Rillito, that were

designated as "moderate"

nonattainment for PM1o by Operation of

law under the 1990 Amended Act.

Determinations under section 179(c)(1)

of the Act are to be based upon an area's

"air quality as of the attainment date."

Section 188(b)(2) is consistent with this

requirement.

Generally, we will determine whether

an area's air quality meets the PM1o

NAAQS for purposes of section

179(c)(1) and 188(b)(2) based upon data

gathered at established state and local

air monitoring stations (SLAMS) and

national air monitoring stations (NAMS)

in the nonattainment area and entered

into EPA's Air Quality System (AQS)

database. Data entered into the AQS

have been determifed to meet federal

monitoring requirements (see 40 CFR

'Arizona submitted a moderate area PMlo plan

for the Rillito area on November 14, 1991. EPA

found this plan to be incomplete by letter dated

May 14, 1992. On April 22, 1994, ADEQ submitted a revised PMo plan for Rillito, and EPA found it

to be complete by letter dated August 18, 1994. EPA

has not taken action on this 1994 PM~o plan.

50.6; 40. CFR part 50, appendix J; 40

CFR part 53; 40 CFR part 58, appendices

A and B) and may be used to determine

the attainment status of areas. We will

also consider air quality data from other

air monitoring stations in the

nonattainment area provided that the

stations meet the federal monitoring

requirements for SLAMS. All data are

reviewed to determine the area's air

quality status in accordance with our

guidance at 40 CFR part 50, appendix K.

Attainment of the annual PMo

standard is achieved when the annual

arithmetic mean PM1o concentration

over a three-year period is equal to or

less than 50 g~g/m 3. Attainment of the

24-hour standard is determined by

calculating the expected number of days

in a year with PM~o concentrations

greater than 150 gg/m 3. The 24-hour

standard is attained when the expected

number of days with levels above 150

gg/m3 (averaged over a three-year

period) is less than or equal to one.

Three consecutive years of air quality

data are necessary to show attainment of

the 24-hour and annual standards for

PM10 . See 40 CFR part 50, appendix K.

A complete year of air quality data, as

referred to in 40 CFR part 50, appendix

K, is composed of all four calendar.

quarters with each quarter containing

data from at least 75 percent of the

scheduled sampling days.

II. What Is the Basis for EPA's

Determination That the Rillito Area

Has Attained the PMo NAAQS?

The Rillito PM1o nonattainment area

is located in north central Pima County,

just northwest of the Tucson

metropolitan area in southern Arizona.2

The nonattainment area encompasses

the following nine townships: Ti lS,

R9E through R12E; and T12S, R8E

through R12E. The incorporated Town

of Marana with a population of

approximately 8,000 is located within

the nonattainment area. A smaller

community, the unincorporated town of

Rillito, is located in the portion of the

nonattainment area historically

associated with maximum ambient PMo

concentrations. The land use around

Rillito is predominantly agricultural.

The only major (i.e., greater than 100

tons per year) stationary point source of

air pollution in the nonattainment area

2 In a 1996 rulemaking (61 FR 21372, May 10,

1996) in which we found that the Phoenix Planning

Area had not attained the PM~o NAAQS by the

applicable attainment date for moderate PM~o

nonattainment areas and thus reclassified the area as "serious", we inadvertently introduced an error into the "Arizona-PM-lO" table in 40 CFR 81.303

by moving the entry for the Rillito planning area

from Pima County to Santa Cruz County. We are correcting this error in today's notice under CAA

section .110(k)(6).

44921

HeinOnline -- 71 Fed. Reg. 44921 2006
Federal Register/Vol. 71, No. 152/Tuesday, August 8, 2006/Rules and Regulations

is an Arizona Portland Cement (APC) residential because it will absorb 0.5 miles northwest of the Arizona

plant. APC is permitted by ADEQ. Most residential development from the Portland Cement plant. This monitor

of the other stationary sources are sand Tucson metropolitan area. was selected by ADEQ to represent

and gravel operations mining the The Rillito PM10 nonattainment area maximum PM10 concentration in the

alluvial deposits of the Santa Cruz River has one SLAMS monitor operated by the area to which the public is exposed.

basin. The area in and around the Arizona Department of Environmental Table 1 summarizes the one-in-six day

nonattaim ent area is expected to Quality (ADEQ). Located at 8820 West PM10 data collected there from 1988-

change from rural agricultural to Water Street within the community of 2005.

Rillito, this monitor is approximately

TABLE 1.-SUMMARY OF 24 HOUR AND ANNUAL PM1o CONCENTRATIONS (kG/M3) FOR RILLITO, 1988-2005

PM1o Concentrations

Year Maximum 24- hour concentra- Annual average 3-year annual

tion average

1988 ...........................................................-, ........ ......... ...... 163 *69.2 NA

1989 ....................................................................................................

. 17 0 *83.3 N A

1990 ....................................................................................................

94 *39.0 *63.8

19 9 1 ....................................................................................................

133 37 .1 *53.1

1992 ....................................................................................................

96 33 .6 36 .6

1993 ....................................................................................................

68 27 .6 32.8

1994 ....................................................................................................

63 28.3 29.8

1995 .................................. ......................................................................................

. 91 36.2 30.7

1996 ....................................................................................................

. 84 38 .3 34 .3

1997 ....................................................................................................

12 9 4 1.9 38 .8

1998 ....................................................................................................

8 1 32 .4 3 7 .5

1999 ....................................................................................................

102 37.8 37 .4

2000 ....................................................................................................

129 *42.1 37.4

200 1 ....................................................................................................

89 33 .6 * 37 .8

2002 ....................................................................................................

70 37.1 *37 .6

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

118 39 .5 36 .7

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

93 32 .2 36 .3

2005 ................................................................... 84 39.1 36.9

* Indicates that the mean does not satisfy criteria for a complete data set.

* Values shown in bold text represent exceedances of the applicable standard.

As noted above, the 24-hour PM10

standard is attained when the expected

number of days with levels above 150

gg/m 3 (averaged over a three-year

period) is less than or equal to one.

Based on the data summarized in table

1, above, we find no exceedances of the

24-hour PM10 standard for the 1992-

1994 period and thus the expected

number of days with levels above 150

gg/m 3 (averaged over that three-year

period) is zero. As such, we find that

Rillito attained the 24-hour PM 0

NAAQS by the applicable attainment

date (1994). Furthermore, since 1994, no

exceedances of the 24-hour PM10

standard have been recorded at the

Rillito monitoring station and thus, we

find that the area has continued to .

attain, and is currently attaining, the 24-

hour standard.

Also as noted above, attainment of the

annual PM10 standard is achieved when

the annual arithmetic mean PM10

concentration over a three-year period is

equal to or less than 50 jg/m3. Review

of the data for calendar years 1992-1994

reveals an arithmetic average of 29.8 ktg/

M 3 . As such, we find that Rillito

attained the annual PM10 standard by

the applicable attainment date (1994).

Since 1994, there have been no

exceedances of the annual PM10

standard, and thus, we find that the area

has continued to attain, and is currently

attaining, the annual standard.

III. What Are The Applicable Planning

Requirements For The Rillito Area As

A Result Of EPA's Attainment

Determination?

The air quality planning requirements

for moderate PM10 nonattainment areas,

such as the Rillito nonattainment area,

are set out in part D, subparts 1 and 4

of title I of the Act. We have issued

guidance in a General Preamble 3

describing how we will review SIPs and

SIP revisions submitted under title I of

the Act, including those containing

moderate PM10 nonattainment area SIP

provisions.

In some designated nonattainment

areas, monitored data demonstrates that

the NAAQS has already been achieved.

Based on its interpretation of the Act,

EPA has determined that certain

requirements of part D, subparts 1 and

I "General Preamble for the Implementation of

Title I of the Clean Air Act Amendments of 1990"

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

FR 18070, April 28, 1992).

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

therefore do not require certain

submissions for an area that has attained

the NAAQS. These include reasonable

further progress (RFP) requirements,

attainment demonstrations and

contingency measures, because these

provisions have the purpose of helping

achieve attainment of the NAAQS.

EPA's Clean Data Policy is the subject

of two memoranda setting forth our

interpretation of the provi sions of the

Act as they apply to areas that have

attained the relevant NAAQS. EPA also

finalized the statutory interpretation set

forth in the policy in a final rule, 40

CFR 51.918, as part of its "Final Rule to

Implement the 8-hour Ozone National

Ambient Air Quality Standard-Phase

2" (Phase 2 Final Rule). See discussion

in the preamble to the rule at 70 FR

71645-71646 (November 29, 2005). EPA

believes that the legal bases set forth in

detail in our Phase 2 Final Rule; our

May 10, 1995 memorandum from John

S. Seitz, entitled "Reasonable Further

Progress, Attainment Demonstration,

and Related Requirements for Ozone

Nonattainment Areas Meeting the

Ozone National Ambient Air Quality

Standard" (Seitz memo); and our

44922

HeinOnline -- 71 Fed. Reg. 44922 2006
Federal Register/Vol. 71, No. 152 /Tuesday, August 8, 2006/Rules -and Regulations

December 14, 2004 memorandum from

Stephen D. Page entitled "Clean Data

Policy for the Fine Particle National

Ambient Air Quality Standards" (Page

memo) are equally pertinent to the

interpretation of provisions of subparts

1 and 4 applicable to PMo. EPA's

interpretation of how the provisions of

the Act apply to areas with "clean data"

is not logically limited to ozone and

PM2.

5, because the rationale is not

dependent upon the type of pollutant.

Our interpretation that an area that is

attaining the standard is relieved of

obligations to demonstrate RFP and to

provide an attainment demonstration

and contingency measures pursuant to

part D of the CAA, pertains whether the

standard is PM10, ozone, or PM2.5.

The reasons for relieving an area that

has attained the relevant standard of

certain part D, subparts 1 and 2

obligations, applies equally to part D,

subpart 4, which contains specific

attainment demonstration and RFP

provisions for PMmo nonattainment

areas. As we have explained in the

Phase 2 Final Rule and our ozone and

PM2.

5 clean data memoranda, EPA

believes it is reasonable to interpret

provisions regarding.RFP and

attainment demonstrations, along with

related requirements, so as not to

require SIP submissions if an area subject to those requirements is already

attaining the NAAQS (i.e., attainment of

the NAAQS is demonstrated with three

consecutive years of complete, qualityassured air quality monitoring data).

Three U.S. Circuit Courts of Appeals

have upheld EPA rulemakings applying

its interpretation of subparts 1 and 2

with respect to ozone. Sierra Club v.

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

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

Cir. 2004); Our Children's Earth

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

Cir. June 28, 2005)(memorandum

opinion). It has been EPA's longstanding

interpretation that the general . provisions of part D, subpart 1 of the

Act (sections 171 and 172) do not

require the submission of SIP revisions

concerning RFP for areas already

attaining the ozone NAAQS. In the

General Preamble, we stated:

[Riequirements for RFP will not apply in

evaluating a request for redesignation to

attainment since, at a minimum, the air

quality data for the area must show that the area has already attained. Sh~wing that the

State will make RFP towards attainment will,

therefore, have no meaning at that point. 57

FR at 13564.

EPA believes the same reasoning applies

to the PM 0 provisions of part D, subpart

4.

With respect to RFP, section 171(1)

states that, for purposes of part D of title

I, RFP "means such annual incremental

reductions in emissions of the relevant

air pollutant as are required by this part

or may reasonably be required by the

Administrator for the purpose of

ensuring attainment of the applicable

NAAQS by the applicable date." Thus,

whether dealing with the general RFP

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

ozone-specific RFP requirements of

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

RFP requirements for PM1o areas of part

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

stated purpose of RFP is to ensure

attainment by the applicable attainment

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

Plan revisions demonstrating attainment

submitted to the Administrator for approval

under this subpart shall contain quantitative

milestones which are to be achieved every 3

years until the area is redesignated

attainment and which demonstrate

reasonable further progress, as defined in

section 7501(1) of this title, toward

attainment by the applicable date.

Although this section states that

revisions shall contain milestones

'which are to be achieved until the area

is redesignated to attainment, such

milestones are designed to show

reasonable further progress "toward

attainment by the applicable attainment

date", as defined by section 171. Thus,

* it is clear that once the area has attained

the standard, no further milestones are

necessary or meaningful. This

interpretation is supported by language

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

that a state that fails to achieve a

milestone must submit a plan that

assures that the state will achieve the

next milestone or attain the NAAQS if

there is no next milestone. Section

189(c)(3) assumes that the requirement

to submit and achieve milestones does

not continue after attainment of the

NAAQS.

If an area has in fact attained the

standard, the stated purpose of the RFP

requirement will have already been

fulfilled.4 EPA took this position with

4 Thus we believe that it is a distinction without

a difference that section 189(c)(1) speaks of the RFP

requirement as one to be achieved until an area is

"redesignated attainment", as opposed to section

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

requirement pertains, or the ozone nonattainment

area RFP requirements in sections 182(b}(1) or 182

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

applying until the "attainment date", since, section

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

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

as with the general RFP requirements in section

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

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

requirements may only be required "for the purpose

of ensuring attainment of the applicable national

ambient air quality standard by the applicable

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

the text of this rulemaking, EPA interprets the RFP

requirements, in light of the definition of RFP in

section 171(1), and incorporated in section

respect to the general RFP requirement

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

General Preamble and also in the May

10, 1995 memorandum with respect to

the requirements of sections 182(b) and

(c). We are extending that interpretation

to the specific provisions of part D,

subpart 4. In the General Preamble, we

stated, in the context of a discussion of

the requirements applicable to the

evaluation of requests to redesignate

nonattainment areas to attainment, that

the "requirements for RFP will not

apply in evaluating a request for

redesignation to attainment since, at a

minimum, the air quality data for the

area must show that the area has already

attained. Showing that the State will

make RFP towards attainment will,

therefore, have no meaning at that

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

September 4, 1992 memorandum from

John Calcagni, entitled "Procedures for

Processing Requests to Redesignate

Areas to Attainment" (Calcagni memo),

p. 6 .

With respect to the attainment

demonstration requirements of section

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

leads to the same result. Section

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

provide for "a demonstration (including

air quality modeling) that the [SIP] will

provide for attainment by the applicable

attainment date. * * *" As with the

RFP requirements, if an area is already

monitoring attainment of the standard,

EPA believes there is no need for an

area to make a further submission

containing additional measures to

achieve attainment. This is also

consistent with the interpretation of the

section 172(c) requirements provided by

EPA in the General Preamble, the Page

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

requirements set forth in the Seitz

memo. As EPA stated in the General

Preamble, no other measures to provide

for attainment Would be needed by areas

seeking redesignation to attainment

since "attainment will have been

reached." (57 FR at 13564).

Other SIP submission requirements

are linked with these attainment

demonstration and RFP requirements,

and similar reasoning applies to them.

These requirements include the

contingency measure requirements of

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

have interpreted the contingency

measure requirements of sections

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

applying when. an area has attained the

standard because those "contingency

measures are directed at ensuring RFP

189(c)(1), to be a requirement that no longer applies once the standard has been attained.

44923

HeinOnline -- 71 Fed. Reg. 44923 2006
Federal Register / Vol. 71, No. 152/Tuesday, August 8, 2006 / Rules and Regulations

and attainment by the applicable date."

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

Both sections 172(c)(1) and

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

assure that reasonably available control

measures" (i.e., RACM) are

implemented in a nonattainment area.

The General Preamble, 57 FR at 13560

(April 16, 1992), states that EPA

interprets section 172(c)(1) so that

RACM requirements are a "component"

of an area's attainment demonstration.

Thus, for the same reason the

attainment demonstration no longer

applies by its own terms, the '

requirement for RACM no longer

applies. EPA has consistently

interpreted this provision to require

only implementation of potential RACM

measures that could contribute to

reasonable further progress or to

attainment. General Preamble, 57 FR at

13498. Thus, where an are a is already

attaining the standard, no additional

RACM measures are required. 5 EPA is

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

consistent with its interpretation of

section 172(c)(1).

Here, as in both our Phase 2 Final

Rule and ozone and PM2.

5 clean data

memoranda, we emphasize that the

suspension of a requirement to submit

SIP revisions concerning these RFP,

attainment demonstration, RACM, and

other related requirements exists only

for as long as a nonattainment area

continues to monitor attainment of the

standard. If such an area experiences a

violation of the NAAQS, the basis for

the requirements being suspended

would no longer exist. Therefore, the

area would again be subject to a

requirement to submit the pertinent SIP

revision or revisions and would need to

address those requirements. Thus, a

determination that an area need not

submit one of the SIP submittals

amounts to no more than a suspension

of the requirements for so long as the

area continues to attain the standard.

However, once EPA ultimately

redesignates the area to attainment, the

area will be entirely relieved of these

requirements to the extent the

maintenance plan for the area does not

rely on them.

Therefore, we believe that-, for the

reasons set forth here and established in

our prior "clean data" memoranda and

rulemakings, a PMio nonattainment area

that has "clean data," should be

5 The EPA's interpretation that the statute only

requires implementation of RACM measures that

would advance attainoment was upheld by the

United States Court of Appeals for the Fifth Circuit

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

2002), and by the United States Court of Appeals

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

155. 162-163 (D.C. Cir. 2002)).

relieved of the part D, subpart 4

obligations to provide an attainment

demonstration pursuant to section

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

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

provisions established by section

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

aforementioned attainment

demonstration, RACM, RFP and

contingency measure provisions of part

D, subpart 1 contained in section 172 of

the Act. 6

Should EPA at some future time

determine that an area that had clean

data, but which has not yet been

redesignated as attainment for a

NAAQS, has violated the relevant

standard, the area would again be

required to submit the pertinent.

requirements under the SIP for the area.

Attainment determinations under the

policy do not shield an area from other

required actions, such as provisions to

address pollution transport.

As set forth above, EPA finds that

because the Rillito area has continued to

attain the NAAQS, the requirement of

an attainment demonstration,

reasonable further progress, reasonably

available control measures and

contingency measures no longer applies

for so long as the area continues to

monitor attainment of the PM1o NAAQS.

If measurements of ambient PM 10

concentration in the Rillito area reveal

a violation of the PM1o NAAQS, then

the State of Arizona would again be

required to submit the pertinenrCAA

requirements for this nonattainment

area. 7

6 In prior rulemakings involving the Clean Data

Policy and PM10 , EPA has applied criteria in

addition to that of attainment of the standard. See,

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

believe that those additional criteria are required by

statute or are necessary for application of the policy

for PM10 areas, and does not employ them in

applying the policy to ozone and PM 2., areas. EPA

intends to make its application of the policy

consistent for ozone, PMto, and PM 2.5, and does not

intend to require an area to meet additional criteria

for PM 1.

7 Note, however, that on January 17, 2006, EPA

published proposed revisions to the NAAQS for

particulate matter. See http://www.epa.gov/fedrgstr/

EPA-AIR/2006/January/Day-1 7/. The proposed

revisions address two categories of particulate

matter: fine particles which are particles 2.5

micrometers in diameter and smaller; and

"inhalable coarse" particles which are particles

between 2.5 and 10 micrometers (PM1

o- 2.5). Upon

finalization of a primary 24-hour standard for

PM1- 2.5, EPA proposes to revoke the current 24-

hour PMis standard in all areas of the country

except in areas where there is at least one monitor

located in an urbanized area (as defined by the U.S.

Bureau of the Census) with a minimum population

of 100,000 that violates the current 24-hour PM 0

standard based on the most recent three years of

data. In addition, EPA proposes to revoke the

current annual PM15 standard upon finalization of

a primary 24-hour standard for PM1-2.5.

IV. EPA's Final Action

Based on quality-assured data meeting

the requirements of 40 CFR part 50,

appendix K, we find that the Rillito,

Arizona nonattainment area attained the

PM50 NAAQS by the applicable

attainment date (1994) and is currently

attaining the standard. This action is not

a redesignation to attainment under

CAA section 107(d)(3) because we have

not yet approved a maintenance plan as

meeting the requirements of section

175A of the CAA or determined that the

area has met the other CAA

requirements for redesignation. The

classification and designation status in

40 CFR part 81 will remain moderate

nonattainment for this area until such

time as Arizona meets the CAA

requirements for redesignation of the

Rillito area to attainment. See footnote

7.

EPA also finds that, because the

Rillito area has continued to attain the

NAAQS, the following CAA

requirements no longer apply: The part

D, subpart 4 obligations to provide an

attainment demonstration pursuant to

section 189(a)(1)(B), the RACM

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

provisions established by section

189(c)(1), and the attainment

demonstration, RACM, RFP and

contingency measure provisions of part

D, subpart 1 contained in section 172 of

the Act.

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

we are correcting the entry for the

Rillito moderate PM10 nonattainment

area in the "Arizona-PM-10" table in

40 CFR 81.303 so that it is identified as

a subarea within Pima County instead of

Santa Cruz County.

We are publishing this rule without

prior proposal because the Agency

views this as a noncontroversial action

and anticipates no adverse comments.

However, in the proposed rules section

of this Federal Register publication,

EPA is publishing a separate document

that will serve as the proposal should

adverse comments be filed. This action

will be effective October 1b, 2006,

without further notice unless the EPA

receives relevant adverse comments by

September 7, 2006.

If we receive such comments, then we

will publish a document withdrawing

the final rule and informing the public

that the rule will not take effect. All

public comments received will then be

addressed in a subsequent final rule

based on the proposed rule. We will not

institute a second comment period.

Parties interested in commenting should

do so at this time. If no such comments

ape received, the public is advised that

this rule will be effective on October 10,

44924

HeinOnline -- 71 Fed. Reg. 44924 2006
Federal, Register/Vo,. '71,' No. 152 /Tuesday, August 8, 2006/Rules aid Regulations 4

2006 and no further. ctonwillbe iakenr

on the proposed rule.

V. Statutory and Executive Order

Reviews

Under Executive Order 12866 (58 FR

51735, October 4, 1993), this action is

not a "significant regulatory action" and

therefore is not subject to review by the

Office of Management and Budget. For

this reason, this action is also not

subject to Executive Order 13211,

"Actions Concerning Regulations That

Significantly Affect Energy Supply,

Distribution, or Use" (66 FR 28355, May

22, 2001). This action merely makes a

determination based on air quality data

and does not impose any additional

requirements. Accordingly, the

Administrator certifies that this rule

will not have a significant economic

impact on a substantial number of small

entities under the Regulatory Flexibility

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

rule does not impose any additional

enforceable duty, it does not contain

any unfunded mandate or significantly

or uniquely affect small governments, as

described in the Unfunded Mandates

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

This rule also does not have tribal

implications because it will not have a

substantial direct effect on one or more

Indian tribes, on the relationship

between the Federal Government and

Indian tribes, or on the distribution of

power and responsibilities between the

Federal Government and Indian tribes,

as specified by Executive Order 13175

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

action also does not have Federalism

implications because it does not have

substantial direct effects on the States,

on the relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132 (64 FR 43255,

August 10, 1999). This action merely

makes a determination based on air

quality data and does not alter the

relationship or the distribution of power

and responsibilities established in the

CAA. This rule also is not subject to

Executive Order 13045 "Protection of

Children from Environmental Health

Risks and Safety Risks" (62 FR 19885,

April 23, 1997), because it is.not

economically significant.

The requirements of section 12(d) of

the National Technology Transfer and

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

272 note) do not apply. This rule does

not impose an information collection

burden under the provisions of the

Paperwork Reduction Act of 1995 (44

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

The Congressional Review Act, 5

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

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. A major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This action is not a "major rule" as

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

Under sectibn 307(b)(1)' of the CAA,

petitions for judicial review of this

action must be filed in the United States

Court of Appeals for the appropriate

circuit by October 10, 2006. Filing a

petition for reconsideration by the

'Administrator of this final rule does not

affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements. (See section

307(b)(2).)

List of Subjects in 40 CFR Part 81

Environmental protection, Air

pollution control, National parks,

Wilderness areas.

Dated: July 25, 2006.

Wayne Nastri,

Regional Administrator, Region 9.

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

of Federal Regulations is amended as

follows:

PART 81--[AMENDED]

m 1. The authority citation for part 81

continues to read as follows:

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

Subpart C-[Amended]

m 2. In § 81.303, the table entitled

"Arizona-PM-lO" is amended by

revising the entries for Santa Cruz

County and Pima County to read as

follows:

§ 81.303 Arizona.

ARIZONA.-PM-1 0

Designation Classification

Designated area Date Type Date Type

Santa Cruz County:

Nogales planning area ........................................................................................ 11/15/90 Nonattainm ent 11/15/90 Moderate.

The portions of the following Townships which are within the State of Arizona and lie east of 111 degrees longitude: T23S, R13E, T23S, R14E,

T24S, R13E, T24S, R14E

Pima County:

Rillito planning area ............................................................................................ 11/15/90 Nonattiinment 11/15/90 Moderate.

Townships: T11S, R9E, T11S, R10E, T11S, R11E, T11S, R12E, T12S,

R8E, T12S, R9E, T12S, R1OE, T12S, R11E, T12S, R12E

Ajo planning area ................................................................................................ 11/15/90 Nonattainm ent 11/15/90 Moderate.

Township T12S, R6W, and the following sections of Township T12S,

R5W:

a. Sections 6-8

b. Sections 17-20, and

c. Sections 29-32

- II lli T l I I II F I I II I I I il " I I 

44925

HeinOnline -- 71 Fed. Reg. 44925 2006