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[Federal Register Volume 76, Number 30 (Monday, February 14, 2011)]
[Rules and Regulations]
[Pages 8300-8303]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-3027]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2011-0041; FRL-9264-1]

Finding of Failure To Submit State Implementation Plan Revisions 
for Particulate Matter, PM-10, Maricopa County (Phoenix) PM-10 
Nonattainment Area, AZ

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to find that Arizona failed to make 
a state implementation plan (SIP) submittal required under the Clean 
Air Act (CAA or Act) for the Maricopa County (Phoenix) nonattainment 
area (Maricopa area) for particulate matter of 10 microns or less (PM-
10). The Maricopa area is a serious PM-10 nonattainment area which, 
having failed to attain the PM-10 National Ambient Air Quality 
Standards (NAAQS) by its required statutory attainment deadline, is 
subject to section 189(d) of the CAA. For such areas, section 189(d) 
requires that states submit within 12 months after the applicable 
attainment date, plan revisions which provide for attainment of the PM-
10 NAAQS, and from the date of such submission until attainment, for an 
annual reduction of PM-10 or PM-10 precursor emissions within the area 
of not less than 5 percent of the amount of such emissions as reported 
in the most recent inventory prepared for the area.
    Arizona submitted a section 189(d) plan for the Maricopa area on 
December 21, 2007, and EPA proposed action on this plan on September 9, 
2010. On January 25, 2011, prior to final action on the plan by EPA, 
Arizona withdrew the submitted plan from the Agency's consideration. As 
a result of the withdrawal, EPA is today finding that Arizona failed to 
make the submittal required for the Maricopa area under section 189(d) 
of the Act.
    This action triggers the 18-month clock for mandatory application 
of sanctions and 2-year clock for a federal implementation plan (FIP) 
under the Act. This action is consistent with the CAA mechanism for 
assuring SIP submissions.

DATES: Effective Date: This action was effective as of February 14, 
2011.

FOR FURTHER INFORMATION CONTACT: Gregory Nudd, U.S. Environmental 
Protection Agency, Region 9, Air Division (AIR-2), 75 Hawthorne Street, 
San Francisco, CA 94105-3901, Telephone: (415) 947-4107; 
nudd.gregory@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    The NAAQS are standards for certain ambient air pollutants set by 
EPA to protect public health and welfare. PM-10 is among the ambient 
air pollutants for which EPA has established health-based standards. 
PM-10 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.

[[Page 8301]]

    On July 1, 1987 EPA revised the health-based NAAQS (52 FR 24672), 
replacing the standards for total suspended particulates with new 
standards applying only to particulate matter up to ten microns in 
diameter (PM-10). At that time, EPA established two PM-10 standards, 
annual standards and 24-hour standards. Effective December 18, 2006, 
EPA revoked the annual PM-10 standards but retained the 24-hour PM-10 
standards. 71 FR 61144 (October 17, 2006). The 24-hour PM-10 standards 
of 150 micrograms per cubic meter ([micro]g/m\3\) are attained when the 
expected number of days per calendar year with a 24-hour average 
concentration above 150 [micro]g/m\3\, as determined in accordance with 
appendix K to 40 CFR part 50, is equal to or less than one. 40 CFR 50.6 
and 40 CFR part 50, appendix K.
    On the date of enactment of the 1990 Clean Air Act Amendments (CAA 
or the Act), many areas, including the Maricopa area, meeting the 
qualifications of section 107(d)(4)(B) of the amended Act were 
designated nonattainment by operation of law. 56 FR 11101 (March 15, 
1991). The Maricopa area is located in the eastern portion of Maricopa 
County and encompasses the cities of Phoenix, Mesa, Scottsdale, Tempe, 
Chandler, Glendale, as well as 17 other jurisdictions and 
unincorporated County lands. The nonattainment area also includes the 
town of Apache Junction in Pinal County. EPA codified the boundaries of 
the Maricopa area at 40 CFR 81.303.
    Once an area is designated nonattainment for PM-10, section 188 of 
the CAA outlines the process for classifying the area as moderate or 
serious and establishes the area's attainment deadline. In accordance 
with section 188(a), at the time of designation, all PM-10 
nonattainment areas, including the Maricopa area, were initially 
classified as moderate.
    A moderate PM-10 nonattainment area must be reclassified to serious 
PM-10 nonattainment by operation of law if EPA determines after the 
applicable attainment date that, based on air quality, the area failed 
to attain by that date. CAA sections 179(c) and 188(b)(2). On May 10, 
1996, EPA reclassified the Maricopa area as a serious PM-10 
nonattainment area. 61 FR 21372.
    As a serious PM-10 nonattainment area, the Maricopa area acquired a 
new attainment deadline of no later than December 31, 2001. CAA section 
188(c)(2). However CAA section 188(e) allows states to apply for up to 
a 5-year extension of that deadline if certain conditions are met. 
Arizona requested an attainment date extension under CAA section 188(e) 
from December 31, 2001 to December 31, 2006. On July 25, 2002, EPA 
approved the serious area PM-10 plan for the Maricopa area and granted 
Arizona's request to extend the attainment date for the area to 
December 31, 2006. 67 FR 48718. This final action, as well as the two 
proposals preceding it, provide a more detailed discussion of the 
history of PM-10 planning in the Maricopa area. See 65 FR 19964 (April 
13, 2000) and 66 FR 50252 (October 2, 2001).
    On June 6, 2007, EPA found that the Maricopa area failed to attain 
the 24-hour PM-10 NAAQS by December 31, 2006 (72 FR 31183) and required 
the submittal of a new plan meeting the requirements of section 189(d) 
by December 31, 2007.
    On December 19, 2007, the Maricopa Association of Governments (MAG) 
adopted the ``MAG 2007 Five Percent Plan for PM-10 for the Maricopa 
County Nonattainment Area'' (189(d) plan). On December 21, 2007 the 
Arizona Department of Environmental Quality (ADEQ) submitted the 189(d) 
plan. MAG adopted and ADEQ submitted this SIP revision in order to 
address the CAA requirements in section 189(d).
    CAA section 110(k)(1) requires EPA to determine whether a SIP 
submission is complete within 60 days of receipt. This section also 
provides that any plan that has not been affirmatively determined to be 
complete or incomplete shall become complete within 6 months by 
operation of law. EPA's completeness criteria are found in 40 CFR part 
51, appendix V. The 189(d) plan submittal became complete by operation 
of law on June 21, 2008.
    EPA proposed to partially approve and partially disapprove the 
189(d) plan on September 9, 2010 (75 FR 54806). On January 25, 2011, 
prior to any final EPA action, Arizona withdrew the 189(d) plan from 
the Agency's consideration.

II. Final Action

A. Finding of Failure To Submit Required SIP Revisions

    If Arizona does not submit the required plan revisions within 18 
months of the effective date of today's rulemaking, pursuant to CAA 
section 179(a) and 40 CFR 52.31, the offset sanction identified in CAA 
section 179(b) will be applied in the affected area. If the State has 
still not made a complete submittal 6 months after the offset sanction 
is imposed, then the highway funding sanction will apply in the 
affected area, in accordance with 40 CFR 52.31.\1\ The 18-month clock 
will stop and the sanctions will not take effect if, within 18 months 
after the date of the finding, EPA finds that the State has made a 
complete submittal addressing the 189(d) PM-10 requirements for the 
Maricopa area. In addition, CAA section 110(c)(1) provides that EPA 
must promulgate a federal implementation plan (FIP) no later than 2 
years after a finding under section 179(a) unless EPA takes final 
action to approve the submittal within 2 years of EPA's finding.
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    \1\ In a 1994 rulemaking, EPA established the Agency's selection 
of the sequence of these two sanctions: The offset sanction under 
section 179(b)(2) shall apply at 18 months, followed 6 months later 
by the highway sanction under section 179(b)(1) of the Act. EPA does 
not choose to deviate from this presumptive sequence in this 
instance. For more details on the timing and implementation of the 
sanctions, see 59 FR 39832 (August 4, 1994), promulgating 40 CFR 
52.31, ``Selection of sequence of mandatory sanctions for findings 
made pursuant to section 179 of the Clean Air Act.''
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B. Effective Date Under the Administrative Procedures Act

    This final action is effective on February 14, 2011.
    Under the Administrative Procedures Act (APA), 5 U.S.C. 553(d)(3), 
an agency rulemaking may take effect before 30 days after the date of 
publication in the Federal Register if an agency has good cause to 
mandate an earlier effective date. Today's action concerns SIP 
revisions that are already overdue and the State has been aware of 
applicable provisions of the CAA relating to overdue SIPs. In addition, 
today's action simply starts a ``clock'' that will not result in 
sanctions for 18 months, and that the State may ``turn off'' by a 
complete SIP submittal addressing the 189(d) PM-10 requirements for the 
Maricopa area. These reasons support an effective date prior to 30 days 
after the date of publication.

C. Notice-and-Comment Under the Administrative Procedures Act

    This final agency action is not subject to the notice-and-comment 
requirements of the APA, 5 U.S.C. 533(b). EPA believes that because of 
the limited time provided to make findings of failure to submit 
regarding SIP submissions, Congress did not intend such findings to be 
subject to notice-and-comment rulemaking. However, to the extent such 
findings are subject to notice-and-comment rulemaking, EPA invokes the 
good cause exception pursuant to the APA, 5 U.S.C. 553(d)(3). Notice 
and comment are unnecessary because no EPA judgment is involved in 
making a nonsubstantive finding of failure to submit SIPs required by 
the

[[Page 8302]]

CAA. Furthermore, providing notice and comment would be impracticable 
because of the limited time provided under the statute for making such 
determinations. Finally, notice and comment would be contrary to the 
public interest because it would divert Agency resources from the 
critical substantive review of submitted SIPs. See 58 FR 51270, 51272, 
note 17 (October 1, 1993); 59 FR 39832, 39853 (August 4, 1994).

III. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b).

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions.
    This final rule will not have a significant impact on a substantial 
number of small entities because findings of failure to submit required 
SIP revisions do not by themselves create any new requirements. 
Therefore, I certify that this action will not have a significant 
economic impact on a substantial number of small entities.

D. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that today's action does not include a Federal 
mandate that may result in estimated costs of $100 million or more to 
either State, local, or tribal governments in the aggregate, or to the 
private sector. The CAA provision discussed in this rule requires 
states to submit SIPs. This rule merely finds that Arizona has not met 
that requirement. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

E. Executive Order 13132, Federalism

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that 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.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless the 
Agency consults with State and local officials early in the process of 
developing the proposed regulation.
    This rule will 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, because it 
does not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
rule.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This final rule does not have 
tribal implications, as specified in Executive Order 13175. It will not 
have substantial direct effects on tribal governments, 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. Thus, Executive Order 13175 does not 
apply to this rule.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
rule is not subject to Executive Order 13045 because it merely finds 
that Arizona has failed to make a submission that is required under the 
Clean Air Act.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    The EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to

[[Page 8303]]

perform activities conducive to the use of VCS.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Population

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA lacks the discretionary authority to address environmental 
justice in this rulemaking.

K. Congressional Review Act

    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. 
section 804(2). This rule will be effective February 14, 2011.

L. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by April 15, 2011. 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)).

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

    Dated: January 3, 2011.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2011-3027 Filed 2-11-11; 8:45 am]
BILLING CODE 6560-50-P
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