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 of the 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 of the

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 County jurisdictions to

implement PM-10 controls.

EFFECTIVE DATE: August 26, 2002.

FOR FURTHER INFORMATION CONTACT:

Frances Wicher, Office of Air Planning

(AIR-2), U.S. Environmental Protection

Agency, Region 9, 75 Hawthorne Street,

San Francisco, California 94105. (415)

947-4155, email:

wicher.frances@epa.gov.

This document and the 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 of Today's Actions on the 1998

Federal PM-10 Plan for the Phoenix

Area

D. Clean Air Act 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

of the Phoenix Serious Area PM-10 Plan

V. Final Actions

A. Approval of the Serious Area Plan

B. Extension of the Attainment Date

C. Approvals of Rules and Commitments

D. Correction of Previous SIP Disapprovals

VI. Administrative Requirements

I. Summary of Today's Actions

We are approving the serious area

state implementation plan (SIP) for

attainment of the 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 attaining the PM-10

standards in serious PM-10

nonattainment areas such as the

metropolitan Phoenix area.

Specifically, we are approving the

following elements of the plan as they

address both the 24-hour and annual

PM-10 standards:

* The base year emissions inventory

of PM-10 sources;

* The demonstration that the plan

provides for implementation of

reasonably available control measures

(RACM) and best available control

measures (BACM) for all source

categories that contribute significantly

to PM-10 standard violations;

* The demonstrations that attainment

by the CAA deadline of December 31,

2001 is impracticable;

* The demonstrations that attainment

will occur by the most expeditious

alternative date practicable, in this case,

December 31, 2006;

* The demonstration that the plan

provides for reasonable further progress

and quantitative milestones;

* The demonstration that the 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 of PM-10 precursors such as

nitrogen oxides and sulfur dioxide do

not contribute significantly to violations

of the 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 its residential

woodburning restriction ordinance as

well as commitments by the 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 of the serious

area PM-10 plan for the Phoenix area.

Today's final approvals also correct

disapprovals of previous Phoenix PM10 plans that resulted in the imposition

of one CAA sanction in the Phoenix area

and a clock running for the imposition

of another. With these approvals, the

sanction is lifted and the clock stopped.

This preamble summarizes our

actions on the Phoenix serious area

plan, gives some background to this

action, and provides responses to the

most significant comments we received

on the proposals for this final action.

We have not repeated the concise

evaluation of the plan that we provided

in the two proposals for today's action.

We refer 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 (October 2,

2001). Our complete evaluation can be

found in our technical support

document (EPA TSD) that accompanies

this final action. The EPA TSD also

includes our full responses to all

comments received on both proposals.

The EPA TSD can be downloaded from

our website or obtained by calling or

writing the contact person listed above.

II. The Serious Area PM-10 Plan for the

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 a number of

'Plan for Attainment of the 24-hour PM-10

Standard-Maricopa County PM- 10 Nonattainment

Area, Arizona Department of Environmental

Quality (ADEQ), May, 1997, submitted May 9, 1997,

approved in part and disapproved in part on August

3, 1997 (62 FR 41856).

2 Serious Area Committed Particulate Control

Measures for PM-10 for the Maricopa County

Nonattainment Area and Support Technical

Analysis, MAG, December 1997, submitted

December 11, 1997.

3 Revised Maricopa Association of Governments

1999 Serious Area Particulate Plan for PM- 0 for

the Maricopa County Nonattainment 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 County PM-10 Serious Area State

Implementation Plan Revision, Agricultural Best

Management Practices (BMP), ADEQ, June 2000,

submitted on June 13, 2001.

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rules. 5 These submittals collectively

comprise the full serious area PM-10

plan for the Phoenix area.

The MAG plan 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 of both standards by 2001 is

impracticable, the demonstration that

attainment of the annual standard and

the 24-hour standard (at all 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 for both

standards under CAA section 188(e).

The BMP TSD updates the MAG plan

to reflect the State's May, 2000 adoption

of the agricultural general permit rule to

control PM-10 from agricultural sources

in Maricopa County. It includes 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 of the 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

5 These 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 at four

Phoenix area monitoring sites: Salt

River, Maryvale, Gilbert, and West

Chandler. It was prepared and

submitted by ADEQ in 1997 as a

component of the overall serious area

PM-10 plan for the Phoenix area.6

III. Proposals for and Information

Related to Today's Actions

A. The Proposals for Today's Actions

Two proposals preceeded today's

final action. The first proposal was

published on April 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 on this 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 also revised

and reproposed 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

on November 1, 2001. We received one

comment letter.

B. Already-Approved Elements of the

Phoenix Serious Area PM-I0 Plan

Two important elements of the

metropolitan Phoenix serious area PM10 plan have already been approved.

These elements were submitted as either

part of the 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 3 of the 8

source categories found to be significant

contributors to 24-hour exceedances in

the Phoenix area and disapproved them

for 5 others. We also approved the

attainment and RFP demonstrations for

the Salt River and Maryvale sites

because the Mircoscale plan

demonstrated expeditious attainment at

these sites but disapproved these

demonstrations for the West Chandler

and Gilbert sites because the plan did

6 A complete history of the Microscale plan,

including the reasons for its 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 of BACM, we have not

reevaluated and are not approving again

those 24-hour provisions already

approved as part of our actions on the

Microscale plan.7

On October 11, 2001, we approved the

State's agricultural BMP general permit

rule and found that it provided for the

implementation of RACM for the

agriculture source category. See 66 FR

51869. We are today finding that the

rule also provides for the

implementation of BACM 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 of the Phoenix

serious area PM-10 plan.

C. Effect of Today's Actions on the 1998

Federal PM-1 0 Plan for the 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.

On June 29, 1999, we replaced the

federal commitment to develop

agricultural controls in the FIP with a

7 According to the approved serious area plan

attainment demonstration in the Microscale plan,

the Salt River site should not have violated the 24-

hour PM-10 standard after May, 1998. The site,

however, continues to violate the standard. Because

there is already an approved serious area plan

attainment demonstration, the remedy under the

CAA for correcting this demonstration is for EPA

to issue a formal request to the State to revise it SIP

pursuant to section 110(k)(5), a process known as

a "SIP call." We will be proposing that SIP call

soon. However, because the elements of the

Phoenix serious area plan that we are approving

today do not address the attainment of the 24-hour

standard at the Salt River site, the issues with the

site's attainment demonstration do not affect

today's action.

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State commitment to adopt best

management practices for the

agricultural sources. 64 FR 34726.

Today's actions do not withdraw or

otherwise modify the demonstrations in

the FIP or the federal fugitive dust rule.

D. Clean Air 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 CAA requirement, a

State has 18 months from the effective

date of the disapproval to correct the

deficiency before the first of two

sanctions goes into place. If the state

still has not corrected the deficiency

within 24 months of the effective date

of the 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 if we

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 a rule 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

8 The two CAA sanctions are a limitation on

certain highway approvals and funding and an

increase in the emissions offset ratio to 2 to 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 of the disapproval that the

highway sanction will be first. 40 CFR 52.31(d).

annual standard. These full approvals

correct the deficiencies that resulted in

the disapproval and permanently end

the offset sanction and stop the clock for

the highway sanctions.

The serious area plan for the Phoenix

area was due on December 10, 1997;

however, Arizona submitted only a

partial plan. On February 6, 1998, we

made a finding that the State had failed

to submit a required SIP (published on

February 25, 1998 at 63 FR 9423). This

finding also started sanctions clocks and

a two-year clock under CAA section

110(c) for EPA to promulgate a

substitute federal implementation plan

if the State did not have a fully

approved one.

On July 8, 1999, Arizona submitted

the full serious area plan, and on August

4, 1999, we found the plan 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 to promulgate a

serious area PM-10 FIP for the Phoenix

area.

E. EPA's Policies on Approving Serious

Area PM-I0 Plans and Granting

Attainment Date Extension

We have issued a General Preamble,

57 FR 13498 (April 16, 1992) and 57 FR

18070 (April 28, 1992), and Addendum

to the General Preamble ("Addendum"),

59 FR 41998 (August 16, 1994),

describing our preliminary views on

how we intend to review 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 of and policy

on granting an extension of the

attainment date under CAA section

188(e). We are finalizing this extension

policy today only as it relates

specifically to our action on the

attainment date extension requested by

the State of Arizona for the Phoenix

area.

IV. Response to Comments on the

Proposed Actions

The following are our responses to the

most significant comments that we

received on the proposals for today's

actions. In section 7 of the EPA TSD, we

provide more detailed responses to

these comments as well as responses to

all comments received. A copy of the

EPA TSD may be downloaded from our

website or obtained by writing or calling

the contact listed above.

A. Comments on EPA's Policies for

Approving Serious Area PM-I0 Plans

and Granting Attainment Date

Extensions

Comment: EPA interprets the CAA to

not require a state to apply BACM to

any source or source category that it has

demonstrated to be de minimis. See 59

FR 41998, 42011 (August 16, 1994). In

its July 2000 comments on the annual

standard proposal, ACLPI disagrees that

EPA can exempt de minimis sources

from the Act's BACM requirement.

ACLPI argues that there 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 of PM-10 shall

be implemented." ACLPI incorporates

by reference its arguments in its Brief

for the Petitioners in Ober v. Whitman

(9th Cir., No. 98-71158) (Ober H) at pp.

21-19, noting that although Ober II

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: Ober II was 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 that the

application of RACM on the de minimis

source categories would not make 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 (well after the close of

the comment period on the annual

standard proposal), the 9th Circuit

issued its opinion in Ober II. Ober v.

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

Air Act and that our use of the de

minimis levels from the NSR program is

appropriate. In addition, the Court

determined that it is appropriate for us

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to use, as a criterion for identifying de

minimis sources, whether controls on

the sources would result in attainment

by the attainment deadline. Ober II at

1198

In finding that EPA had the authority

to exempt de minimis source categories

of PM-10 from CAA control

requirements, the Court wrote:

Courts have refused to allow de minimis

exemptions where the statutory language

does not allow it. * * * There is no explicit

provision in the Clean Air Act prohibiting

the exemption from controls for de minimis

sources of PM-10 pollution. Nor is the

statutory language uncompromisingly rigid.

The Act provides that a plan must include "reasonably" available control measures to

bring the area into attainment unless

attainment is "impracticable." Those terms

allow for the exercise of agency judgment.

* * * We conclude that EPA, in discharging

its duty to enforce the Act, is permitted

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

Resources Defense Council, Inc., 467 U.S.

837 (1984)] to exempt de minimis sources of

PM-10 from pollution controls.

Ober II at 1194 (internal cites and quotes

omitted).

The Court's reasoning is equally

applicable to the 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 of BACM

"uncompromisingly rigid." Like RACM,

the Act and EPA policy provide that a

PM-10 plan must include the "best"

available control measures to bring the

area into attainment unless attainment

is "impracticable." The term "best"-no

less than the term "reasonably"-allows

for the exercise of agency judgment.

In Ober I, the Court also upheld the

procedures and criteria we used to

determine what constituted a de

minimis source or source category for

RACM. Ober II at 1198. We have applied

exactly the same procedures and criteria

for BACM. For BACM, 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 on them would not make the

difference between attainment and

nonattainment by the applicable

deadline. See 24-hour standard proposal

at 50281.

Finally, we note that we invoke a de

minimis exemption from the Act's

general but open-ended control

requirements like RACM, BACM, and

MSM as a means of ensuring that states

focus their always limited resources on

the controls most likely to result in real

air quality benefits. It is more likely to

harm air quality than to help it if these

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 of both financial

and human resources because of the

number of sources and the type of

needed controls. 9 As the court has

recognized in Alabama Power Co. v.

Costle, 636 F.2d 323, 360 (D.C.Cir.

1979), "[c]ourts should be reluctant to

apply the literal terms of a statute to

mandate pointless expenditures of

effort. * * * The ability * * * to

exempt de minimis situations from a

statutory command is not an ability to

depart from the statute, but rather a tool

to be used in implementing the

legislative design." Cited in Ober II at

1194.

Comment: In its July 2000 comments

on the annual standard proposal, ACLPI

argues that our de minimis exception

violates the Act's central mandate for

attainment of the PM-10 standards by

December 31, 2001 or as expeditiously

as possible thereafter because it allows

us and the states to eschew otherwise

available control measures based on an

arbitrary de minimis test even if the

aggregate effect of implementing

controls on all "de minimis" sources

would hasten attainment. It further

comments that even if the 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

of the BACM de minimis exemption. We

do not consider a source category or

groups of source categories to be de

minimis if applying BACM to it or them

9 There are literally thousands of sources 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 of our 1999 outreach on the PM10 FIP. Effective fugitive dust control 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 and Addendum at

42011.

Under our de minimis policy,

whether the NSR thresholds are

appropriate for an area depends on the

specific facts of that area's PM-10

nonattainment problem, that is, it

depends on the actual PM-10

conditions in the nonattainment area.

We do not 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

at 42011.

We used these NSR thresholds in our

1998 FIP. ACLPI raised the same

objections to their use there for the

RACM requirement as it does here for

the BACM requirement. Ober II at 1196.

The Ninth Circuit in reviewing the FIP

found that it was 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.

Ober II at 1196. Our reasoning for

applying those thresholds for BACM is

the same as our reasoning for applying

them for RACM; therefore, we believe

that the NSR thresholds are an

appropriate starting point for

determining which source categories are

significant and which are de minimis

for the purposes of applying BACM.

Comment: Under the section 188(e)

extension provisions, a state must show

that it has complied with all

requirements and commitments in its

implementation plan. We interpret this

requirement to apply only to the control

measures in the state's previously

submitted PM-10 implementation

plans. See 24-hour standard proposal at

50282. ACLPI argues that in addition to

fully implementing the control

measures in the SIP revisions that it has

submitted, a state must also show that

it has implemented other provisions of

its SIP. ACLPI also comments that EPA's

attempt to limit this requirement to PM10 commitments has no basis in the Act.

Response: We believe that this

criterion's purpose is to assure that a

state is not rewarded with additional

time to attain the PM-10 standards if it

has not implemented earlier

commitments and requirements to

reduce PM-10 levels. Given this

purpose, the focus of the test to

determine if a state has met this

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criterion should be on the

implementation of PM-10 emission

reducing control measures rather then

on the implementation of programs,

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 of the 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 the implementation 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 of plans 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

almost identical to the language in

section 188(d) that allows a one-year

extension of the 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. See Memorandum, Sally L. Shaver,

OAQPS, to Regional Air Directors,

"Criteria for Granting 1-Year Extensions

of Moderate 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 CAA to

allow states to exempt from the most

stringent measures requirement in

section 188(e) any source or source

category that it has demonstrated to be

de minimis. 24-hour standard proposal

at 50283. ACLPI disagrees that EPA can

exempt de minimis sources of PM-10

from the Act's MSM requirement,

arguing that the Act requires areas

seeking an extension of the serious area

PM-10 attainment deadline to

demonstrate that their 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 that there is no de

minimis exception to this explicit

mandate.

Response: As stated above in response

to a similar comment regarding the

exemption of de minimis sources from

the BACM requirement, we believe the

Ober II Court'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 as a means to ensure that states

focus their always limited resources on

the controls most likely to result in real

air quality benefits.

Like the RACM requirement, there is

no explicit provision 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 of the Administrator"-in

the MSM provision specifically calls for

the Agency to exercise its judgement in

deciding how exactingly to apply the

requirement. See Ober II at 1194.

In our policy on the MSM

requirement, we are using the same

principles for determining when a

source is considered de minimis under

the MSM requirement that we used for

the RACM requirement upheld by the

Ober II Court. 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 of the 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 that EPA'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 if the aggregate

effect of implementing 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" is vague and fails to

comport with the Act.

Response: ACLPI misstates the scope

of the MSM de minimis exemption. We

do not consider a source category or

groups of source categories to be de

minimis if applying MSM to it or to

them would hasten attainment. We

stated this clearly in both the proposal

for the annual standard provisions and

for the 24-hour standard provisions:

Annual standard proposal at 19969; 24-

hour standard proposal at 50583.

In Ober I, the Court found:

Using the [attainment] deadline to

determine whether controls must be imposed

makes sense. The deadline is not an arbitrary

date unrelated to air quality concerns. * * *

In this case, the [FIP] concludes that the

deadline will not be met even if these small

sources of PM-10 were controlled. Under

those circumstances, it is reasonable to

decline to control the de minimis sources of

pollution.

Ober II at 1198.

In interpreting the MSM requirement

to allow exemptions on de minimis

grounds, we are also using 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 its plan includes

MSM), it must also submit a

demonstration that attainment will

occur by the "most expeditious

alternative date practicable." See CAA

section 188(e). If it can be shown that

including a certain set of potential MSM

would not result 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 of this dependence, we cannot

in policy specify a time period that is

appropriate in all situations. We can

propose the appropriate time period

only within 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

1l This is similar to the de minimis thresholds

which we also cannot specify in advance because

they too must be set based on the actual PM-10

conditions in the nonattainment area and the

particular PM-10 standard under the consideration.

See Addendum at 42011.

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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

can take economic considerations into

account when determining the

feasibility of MSM for the purposes of

the MSM demonstration required under

section 188(e). ACLPI argues that the

Act only allows for the rejections of an

MSM if it cannot feasibly be

implemented in the area and any

measure that is included in another SIP

or achieved in practice in another state

is by definition economically feasible

because it is capable of being done or

carried out if sufficient resources are

devoted to it. ACLPI also argues that

only its interpretation of MSM fits

within the Act's strategy of offsetting

longer attainment time frames with

more stringent control requirements and

that by allowing for the rejection of

MSM based on cost, EPA has made

MSM virtually indistinguishable from

BACM.

Response: We believe that Congress

very clearly intended that the 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 of an

extension, the last of which is "the

technological and economic feasibility

of various 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 the plan include "the

most stringent measures that * * * can

feasibly be implemented in the area."

By allowing us to consider the

economic feasibility of measures in

judging whether to grant an extension

and how long an extension to grant,

Congress necessarily also allowed states

to consider economic feasibility in

demonstrating the need for an extension

of a given length. If section 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 of various control measuresout of section 188(e). A statute should

not be interpreted to render any

provision of that statute meaningless.

See Northwest Forest & Resource v.

Glickman, 82 F.3d 825, 834 (9th Cir.

1996). See also Gustafson v. Alloyd Co.,

115 S. Ct. 1061, 1067 (1995) (no Act of

Congress should "be read as a series of

unrelated and isolated provisions.");

Department of Revenue of Oregon v.

ACF Industries, 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 is to offset longer attainment

time frames with more stringent control

requirements. We do not agree that the

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 of any

additional control measures above and

beyond those already adopted by the

state to provide for BACM and

expeditious attainment.

The MSM provision is written to

assure that a state consider the most

effective controls from elsewhere in the

country for implementation in the area

requesting an attainment date extension.

The results of the analysis are

completely dependent on how well

other areas have controlled their PM-10

sources. If other areas have not

controlled a particular source category

well, then the resulting MSM for that

source category will not be the more

effective level of control than what is

actually feasible for the area. The MSM

provision, however, does not require a

state to determine if the 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 of control that could be

applied to a source category given local

conditions and the additional

implementation time afforded by an

extension.

In considering the MSM provision,

there is a tendency to assume that there

are always better controls elsewhere

than there are in the local area. This

assumption is unwarranted, 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 MAG plan, Chapter 5) and

either adopted them as BACM or

rejected them as not feasible for their

area. As a result, the likelihood of

uncovering substantial new controls

during a MSM 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)

that the PM-10 plan demonstrate

attainment by the most expeditious

alternative date practicable but no later

than December 31, 2006. The SIP

revision containing this demonstration

must accompany any request for

extension of the attainment date under

section 188(e). Because we are required

to grant the shortest possible extension,

a state must demonstrate that it has

adopted the set of control measures that

will result in 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's interpretation of the phrase "to

the satisfaction of the Administrator" in

section 188(e). Specifically, ACLPI

rejects the notion that by using this

phrase, Congress intended to grant EPA

discretion to accept an MSM

demonstration even if it falls short of

having every MSM possible because this

interpretation contradicts the express

language of section 188(e) as well as the

requirement that the area achieve

attainment by the most expeditious date

practicable. ACLPI argues that the Act

uses the phrase to grant EPA the

authority to determine whether a state

has adequately demonstrated that its

plan includes the most stringent

measures that are feasible, not to give

the agency carte blanche to circumvent

the will of Congress by ignoring the

State's failure to meet this requirement.

Response: First, the Act does not

require states to adopt every possible

MSM. There is nothing in the express

language of section 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 of the MSM

requirement is consistent with how we

have historically interpreted the general

RACM requirement in CAA section

172(c)(1), a requirement which does use

the word "all." This section requires

that nonattainment area plans "provide

for the implementation of all reasonably

available control measures * * * "

(emphasis added). In interpreting this

requirement, we have long held that a

state is not obligated to adopt and

implement measures that will not

contribute to expeditious attainment."

11 We would not consider a measure to be

reasonable if it 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

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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 of the section 189(a) RACM

requirement where the court found that

using the attainment deadline to

determine whether controls must be

reasonable "makes sense." Ober II at

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 set of controls to be 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). If a state can be

shown that including a certain set of

potential MSM would not result in more

expeditious attainment, then it is

reasonable and consistent with the Act

not to require their inclusion as a

condition of approval.

Second, Congress did not need to add

the phrase "to the satisfaction of the

Administrator" to grant us the authority

to review the adequacy of a state's MSM

demonstration. It had already given it to

us by granting us the discretionary

authority under section 188(e) to grant

or to deny a state's extension request. By

attaching the phrase specifically to the

MSM requirement, Congress

emphasized EPA's administrative

authority to determine an appropriate

interpretation of what 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 that this is our sole

criterion, our interpretation of "to the

satisfaction of the Administrator" does

not conflict with the Act's requirement

for attainment by the earliest alternative

date practicable.

2001) (approval of the Beaumont/Port Arthur ozone

nonattainment area plan). Similarly, for the

purposes of the MSM requirement, we would not

consider such a measure to be feasible for the area.

Comment: ACLPI argues that EPA's

proposed methodology for determining

MSM is flawed because it apparently

does not require states to quantify

expected emission reductions from

measures for purposes of making MSM

demonstrations.

Response: We do not 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 of determining relative

stringency. Often, control measures are

easily comparable without

quantification. In these cases,

quantification adds no additional

information and is unnecessary. In other

cases, quantification is not possible or

cannot be done accurately enough

because there is no methodology and/or

insufficient data to calculate the

difference in emissions reductions

between measures.

Because quantification is often

problematic, we have not established in

our policy on the MSM provision a

specific method that a state must use to

compare the stringency of measures,

rather we expect a state to select the best

method for making this comparison on

a case-by-case basis taking into account

the need to provide a clear and

conclusive demonstration. See 24-hour

standard proposal at 50284.

B. Comments on EPA's Detailed

Evaluation of the Phoenix Serious Area

PM-10 Plan

Comment: ACLPI disagrees with

EPA's statement that the Act does not

require the metropolitan Phoenix

serious area plan to address the

adequacy of the 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 of the CAA requires

implementation plans to provide for the

establishment and operation of a 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 of the CAA (such as the Phoenix

serious area plan) because it is the data

from this monitoring network which

establish the area's nonattainment status

and its initial classification as well as

the degree of control needed to attain

the applicable standard. Therefore, SIP

monitoring provisions are addressed

separately and well in advance of the

development of nonattainment area

plans.

Nonattainment area plans are not, 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 as part 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

of their ambient air quality monitoring

networks annually. We discuss the

adequacy of the monitoring network as

part of our 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 is necessary to assure sound

attainment demonstrations. The

network, however, does not need to

meet all our regulatory requirements to

be found adequate to support air quality

modeling. A good 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 fails to

includes a specific measure and also

fails to provide a reasoned justification

for the rejection of the measures and

that this violates both the CAA and EPA

guidance, which require serious area

PM-10 SIP revisions to provide for the

implementation of all BACM or provide

a reasoned justification for their

rejection.

Response: ACLPI is incorrectly

characterizing both the CAA's BACM

requirement and our guidance regarding

it. Neither requires the implementation

of all BACM. CAA section 189(b)(1)(B)

requires that SIPs include "provisions to

assure that the best available control

measures for the control of PM-10 shall

be implemented * * *" There is

nothing in this express language of this

section that requires the implementation

of all 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

only provide for the implementation of

BACM on its significant source

categories: "in summary [of the process

for selecting BACM for area sources],

the State must document its selection of

BACM by showing what control

measures applicable to each source

category (not shown to be de minimis)

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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 all BACM.

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 of the

RSD program a violation of the CAA and

asked that the ruling be included in the

record for this rulemaking. Finally,

ACLPI asserts that as a measure that has

been implemented in the State for 3

years, it is 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 of its carbon

monoxide and ozone plans. In the MAG

PM-10 plan, Arizona used the RSD

program in the same manner as it used

a number of other existing measures: to

support its demonstration that the 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 that the RSD program was no

longer in place and determined that the

plan still provided for the

implementation of BACM and inclusion

of MSM without it. See 24-hour

standard proposal at 50259. Arizona has

in place one of the 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 measures both

encouraging and requiring diesel fleet

turnover), we believe the plan easily

provides for the implementation of

BACM and inclusion of MSM for onroad motor vehicle exhaust. See 24-hour

proposal at 50258.

The plan included a very small NOx

benefit of 4 kg per day, 0.003 percent of

the daily NOx inventory. See email,

Cathy Arthur (MAG) to Frances Wicher

(EPA), "Impact of Removal of Remote

Sensing Program on NOx in 2006,"

October 2, 2001. While not calculated in

the serious area plan, a rough estimate

of potential directly-emitted PM-10

reductions from the program is no more

than one-half ton per year (or 2.6 lbs per

day). Neither the NOx benefit nor the

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 of its high cost

per ton of reductions, in the order of

thousands of dollars per ton of pollutant

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 a valid reason

for rejecting a measure as MSM. See 24-

hour standard proposal at 50283.

Because we have determined that the

Metropolitan Phoenix serious area plan

provides for the implementation of

BACM, inclusion of MSM 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 reasoned justification

for the rejection of CARB 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. Citing Delaney v. EPA, 898

F.2d 695 (9th Cir. 1990), ACLPI states

that it is not EPA's role to supply

justifications that the state has not itself

claimed. ACLPI also asserts that BACM

cannot be excused if it would not

advance the attainment date by one

year; a measure must be adopted if it

would advance the attainment date by

even one day.

Response: Neither EPA nor MAG

concedes that CARB diesel is a most

stringent measure that is feasible for the

Phoenix area. The serious area plan

rejects CARB diesel as infeasible for the

Phoenix area based on costs. MAG plan,

p. 9-46. Noting the uncertainties

regarding this cost estimate, we could

not judge whether this justification 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 a reasoned

justification for not including it.

Our sole criterion for determining if

the plan provides for MSM is whether

it has excluded any feasible MSM or a

group of feasible MSM that, if adopted

and implemented early, would result in

attainment of the PM-10 standards more

expeditiously. On-road and nonroad

engines (the source categories that

would be affected by CARB diesel) are

not implicated in 24-hour exceedances

of the 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

of the 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 of CARB diesel would not

advance the attainment date in the area,

either by itself or in combination with

other measures. It takes a reduction of

more than 4 metric tons per day to

advance the annual standard attainment

by a year in the Phoenix area. EPA TSD

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 for judging

whether a measure would expedite

attainment of the annual standard. One

year is the smallest increment of time

that one can advance attainment of the

annual standard because the annual

standard is measured over a calendar

year, from January 1 to December 31.

See 40 CFR part 50.

Because the including CARB diesel

would not result in more expeditious

attainment of either PM-10 standard,

we find that the Phoenix serious area

plan has meet the MSM requirement

without it and without including a

reasoned justification for rejecting it

ACLPI's reliance on Delaney is

misplaced. In that case, the Court found

that EPA's 1979 guidance explicitly

provided that certain measures were

presumptively reasonably available and

that it was the state's burden to

overcome that presumption. In 1992, we

repealed the provisions of the 1979

guidance at issue in Delaney and added

provisions specifically for PM-10 that

establishes no presumption for those

measures. See General Preamble at

13560. Here, there was no EPA policy

presumption that CARB diesel was a

feasible measure for the Phoenix area

which Arizona had to overcome.

Comment: ACLPI argues that the

metropolitan Phoenix plan improperly

rejects various TCMs related to

congestion management and idling

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reduction on the grounds that

individually each measure would have

a relatively 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 of these measures based solely

on the amount of their individual

impact violates the requirement 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

or idling measures that were identified

as potential BACM but were not

adopted as part of the plan: off-peak

movement of goods, truck restrictions

during peak times, limit excessive car

dealership vehicle starts, and limit

idling time to 3 minutes. Contrary to

ACLPI's assertions, the plan did not

reject these measures on "small impact"

grounds. Rather, it provides no clear

justification for rejecting any of these

measures.

Prior to the development of the

serious area plan, the Phoenix area

already had in place a comprehensive

set of TCMs. See EPA TSD, Table TCM2. With the additional measures in the

serious area plan (including additional

traffic light synchronization, transit

improvements, and bicycle and

pedestrian facility improvements), we

believe the plan easily provides for the

implementation of BACM 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 of the PM-10

standards in the Phoenix area.

As we have discussed previously,

neither the CAA nor EPA guidance

requires the implementation of all

BACM, only that a state provide for the

implementation of best available control

measures on its significant source

categories. See CAA section 189(b)(1)(B)

and the Addendum at 42014. Moreover,

we do not believe that the CAA requires

us to reject an otherwise sound plan

because of minor issues that do not

affect the principal purposes of the plan:

implementation of BACM and progress

towards and expeditious attainment.

Because the measures would not

contribute to expeditious attainment

and the State has provided for the

implementation of BACM without them,

we do not believe that the lack of these

measures or a reasoned 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 that the plan

provides no explanation as to why the

implementation of these measures by all

jurisdictions is infeasible. ACLPI asserts

that EPA guidance indicates that BACM

should be adopted and implemented

throughout a serious PM-10

nonattainment area unless 100 percent

implementation is infeasible. ACLPI

also contents that because some

jurisdictions have committed to more

stringent control measures than other

jurisdictions, their measures must be

considered BACM/MSM and the plan

must either provide for these measures'

implementation by all jurisdictions or

demonstrate why this is infeasible.

Response: ACLPI cites our serious

PM-10 nonattainment area planning

guidance at Addendum at 42014 to

support its first premise. This guidance

states:

When evaluating economic feasibility,

States should not restrict their analysis to

simple acceptance/rejection decisions based

on whether full application of a measure to

all sources in a particular category is feasible.

Rather, a State should consider implementing a control measure on a more limited basis,

e.g., for a percentage of the sources in a

category if it is determined that 100 percent

implementation of the measure is infeasible.

This would mean, for example, that an area

should consider the feasibility of paving 75

percent of the unpaved roadways even

though paving all of the roads may be

infeasible.

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 and that, before it

rejects a measure 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 and not to each individual

jurisdiction within that nonattainment

area.' 2 Consequently, we have reviewed

12 This is clear from the language of the

applicable CAA sections. CAA section 189(b)(1)(b)

requires that "a state in which all or part of a

serious area is located shall submit an

implementation plan for such area that includes

whether the combined effect of all

controls adopted in the metropolitan

Phoenix area for a particular source

category results in the implementation

of BACM and the inclusion of MSM for

that source category. Because BACM

and MSM are nonattainment area-wide

requirements, the actions of one

jurisdiction within the nonattainment

area cannot set a standard for BACM

and/or MSM that must either be

implemented by all other jurisdictions

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 that plans provide

assurances of adequate 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. It does not need

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 of the section: "[e]ach

implementation plan submitted by a

State * * * shall * * * provide (i)

necessary assurances that the State

* * * will have adequate personnel,

funding, and authority under State

* * * law to carry out such

implementation plan." (emphasis

added). Therefore, where a jurisdiction

has not committed to implement a

measure, it is not required to provide

assurances of adequate resources as part

of its submittal in order to have it

approved under CAA section

110(a)(2)(E).

Comment: For a number of reasons,

ACLPI asserts that Rule 310.01 weakens

the FIP rule requirements for disturbed

vacant lots and unpaved roads. ACLPI

further asserts that EPA's conclusion

that the 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 * * * " The requirements in

both sections apply to the serious area and not to

the individual jurisdictions within the serious area.

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and Rule 310.01 will not have a

significant impact on emission

reductions is unsupported by

quantification or analysis of the relative

emission reductions and thus EPA's

approval of the rule change as sufficient

to provide the same level of control as

the FIP rule is therefore arbitrary and

capricious and violates 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 on the FIP rule are not germane.

Neither the CAA nor EPA 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

a greater level of stringency to apply in

areas that are required to implement

BACM than in those areas required only

to implement RACM, the intent is that

the overall PM-10 control strategy for a

category should, in general, be more

stringent rather than that every

individual control measure in that

strategy be more stringent.

A state can show that it has

implemented BACM in more than one

way. It can show it by demonstrating

that its BACM-level control measures

for a source category collectively go

beyond existing RACM-level measures

for that category. Addendum at 42013.

It can also show it by demonstrating that

its adopted measures meet the

definition of BACM. Addendum at

42010. Thus, if a state has already

adopted measures to meet the RACM

requirement that are collectively the

'maximum degree of emissions

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 that a BACM

demonstration is done source category

by source category and not measure by

measure. In determining whether a state

has provided for the implementation of

BACM on a particular source category,

we need to look at all 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 is the

combination of Rule 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 of the BACM/MSM

demonstration for construction sites is

contingent upon commitments by

MCESD to add additional control

requirements for dust suppression and

to make other changes to MCESD Rule

310. While ACLPI agrees that Rule 310

needs strengthening, it asserts that a

commitment to make unspecified

changes to the rule to achieve a BACM/

MSM level of control is inadequate

because it does not meet the

requirements of the Act for enforceable

measures no later than June 10, 2000

(BACM) or as expeditiously as

practicable (MSM) and offers no

assurances that adequate changes will

ever be adopted. ACLPI claims that the

techniques for controlling emissions

from construction activities and sites are

well known.

ACLPI further asserts that EPA may

only approve a plan based on a

commitment pursuant to CAA section

110(k)(4) and then only if the state

commits to adopt specific enforceable

measures by a date certain but not later

than 1 year after the date of approval 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 commit to adopt specific

enforceable measures but only to

"research, develop and incorporate"

additional unspecified measures for

dust suppression practices/equipment

into Rule 310 or the dust control plans

required under that rule. Finally, ACLPI

states that the serious area plan must

include the BACM/MSM measures

identified from South Coast, Clark

County and Imperial County or provide

a reasoned justification for their

rejection and it is not enough for

Maricopa County to commit to studying

these measures.

Response: We are approving MCESD's

commitments under CAA section

110(k)(3) and not section 110(k)(4). We

believe-consistent with past practicethat the Act allows approval of

enforceable commitments under section

110(k)(3) that are limited in scope where

circumstances exist that warrant the use

of commitments in place of adopted

measures. These commitments are

enforceable by EPA and citizens under,

respectively, CAA sections 113 and 304

of the Act. 1 3

13 In the past, we have approved enforceable

commitments and courts have enforced these

actions against states that failed to comply with

those commitments. See, for example, American

Lung Association of New Jersey v. Kean, 670 F.

Supp. 1285 (D.N.J. 1987), affirmed, 871 F.2d 319

(3rd Cir. 1989); NRDCv. N.Y. State Dept. of

Environmental Conservation, 668 F. Supp. 848

Section 110(k)(4) provides for the

conditional approval of State

commitments; however, these

commitments do not need to be

enforceable. Commitments approved

under section 110(k)(3) are not

enforceable by either EPA or citizens,

rather the Act provides that the

conditional approval will convert to a

disapproval if "the State fails to comply

with such commitment."

MCESD's commitments have been

adopted by the Maricopa County Board

of Supervisors after appropriate public

notice and hearing 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 of these

enforceable commitment here because it

is the only approach available at this

time to assure the needed improvements

to Rule 310. The information needed to

make these improvements and to

specify the details of these

improvements does not currently exist

and must be developed through

additional research and investigation.

While the general techniques for

controlling dust from construction

activities are well known (e.g. watering),

the most effective applications of these

general techniques for controlling

emissions from any particular

construction site in Maricopa County

(e.g., how much water and when to

apply it) are not well known.

Construction sites differ in soils

(affecting the quantity of water needed

for effective control), meteorological

conditions (affecting the frequency with

which water must be applied),

equipment size/use (affecting quantity

and plume characteristics of dust

generated), project phase (affecting

quantity and time period of dust

generated), and level of activity

(affecting quantity of dust generated).

The specifics of how controls should be

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 for a Better Environment v.

Deukmejian, 731 F. Supp. 1448, reconsideration

granted in part, 746 F. Supp. 976 (N.D. Cal. 1990);

Coalition for Clean Air, et al. v. South Coast Air

Quality Management District, CARB, and EPA, No.

CV 97-6916 HLH, (C.D. Cal. August 27, 1999).

Further, if a state fails to meet its commitments, we

can make a finding of failure to implement the SIP

under Section 179(a), which would start an 18-

month period for the State to begin implementation

before mandatory sanctions are imposed.

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One of the 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 is important for sites to have

some flexibility in selecting which

control measure(s) to implement, there

are field circumstances where the

technique must be implemented in a

certain manner to be 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 of cut.

In some other situations, a tackifyer or

surfactant needs to be added to the

water for better penetration. However,

these approaches may be needed only

under certain field conditions. MCESD

needs additional time to investigate

when and where it would be

appropriate to require more specific

controls and what those controls should

be.

Another one of MCESD'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 they better

characterize fugitive dust sources that

create intermittent plumes. Information

on how to do this 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 to better accommodate the

temporal nature of plumes from vehicle

passes, additional field research is

needed to determine how observation

intervals and other aspects of opacity

readings can be better tailored to the

variety of intermittent plumes generated

by construction equipment and

activities.

Once we determine that

circumstances warrant the use of an

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 of the statutorily-required

program; (2) whether the state is capable

of fulfilling 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 of Appeals

for the District of Columbia Circuit struck down an

EPA policy that would allow States to submit

(under limited circumstances) commitments for

First, MCESD's commitments address

a very limited portion of the CAA's

requirements for the implementation of

BACM and the inclusion of MSM. In

this case, MCESD's commitments are

improvements to aspects of the 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 and has provided

information on its work plan for

completing the necessary technical

work. See Maricopa County

commitments as revised December 19,

2001.

The final factor is whether the

commitment is for a reasonable and

appropriate period. All but one of the

commitments have deadlines of

December 2002, less than a year after

their approval. The other commitment is

the implementation of a second level of

dust control education that will begin in

the March to June 2003 time frame. See

Maricopa County commitments as

revised December 19, 2001. Given the

complexity of the tasks required by the

commitments, we believe that these

schedules are expeditious. Moreover,

they are consistent with the attainment

and RFP demonstrations in the plan.

Our approach here of accepting

enforceable commitments that are

limited in scope is not new. We have

historically recognized that under

certain circumstances, issuing a full

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)

(federal implementation plan for PM-10

for Phoenix); 48 FR 51472 (State

Implementation Plan for New Jersey).

Nothing in the Act speaks directly to

the approvability of enforceable

commitments. However, we believe that

our interpretation is consistent with its

provisions. For example, CAA section

entire programs. Natural Resources Defense Council v. EPA, 22 F.3d 1125 (D.C. Cir. 1994). While we do

not believe that case is directly applicable here, we

agree with the Court that other provisions in the Act

contemplate that a SIP submission will consist of

more than a mere commitment. See NRDC, 22 F.3d at 1134.

15 As we will discuss later, MCESD has also

committed to adopt a rule for certain types of

charbroilers. This commitment does not change our

analysis here because, even when combined with

the commitments to improve Rule 310, it is a very

small part of the 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

schedules and timetables for

compliance, as may be necessary or

appropriate to meet the applicable

requirement of the 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 of BACM and

inclusion of MSM. Rather, the emissions

limitations and other control measures

may be supplemented with other SIP

rules-for example, the enforceable

commitments we are approving todayas long as the entire package of

measures and rules provides for BACM

and MSM.16

Comment: ACLPI comments that the

CAA requires that SIPs must provide for

the implementation of all RACM and

that the Governor's Agricultural Best

Management Practices Committee

identified a variety of available and

feasible control measures which are

included in the agricultural general

permit rule as BMPs. ACLPI asserts that

the Rule does not meet the CAA

requirement for all RACM because it

only requires the implementation of one

BMP from each of three categories of

farm activities even if the

implementation of more than one BMP

would be 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 of MSM. We

have not addressed whether it also

provided for the implementation of

RACM because 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 during the

comment period on this earlier

rulemaking. ACLPI made comments on

this earlier rulemaking, and we fully

addressed those comments in the final

1

6 Our interpretation that the Act allows for an

approval of limited enforceable commitments has

been upheld by the Ninth Circuit Court of Appeals,

as well as by other circuits. See Kamp v.

Hernandez, 752 F.2d 1444 (9th Cir. 1985); City of

Seabrookv. EPA, 659 F.2d 1349 (5th Cir. 1981);

Connecticut Fund for the Environment v. EPA, 672

F.2d 998 (2d Cir.), cert. denied 459 U.S. 1035

(1982); Friends of the Earth v. EPA, 499 F.2d 1118

(2d Cir. 1974).

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action. See 66 FR 51869, 51871. See

also, 66 FR 34598 (June 29, 2001).

Comment: ACLPI asserts that the

metropolitan Phoenix area plan fails to

include the most stringent measures as

required by CAA section 188(e) because

it does not uniformly require the

cessation of tilling on high wind days as

South Coast Rule 403 rule does but

rather includes it as one measure among

several that a farmer 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 of high wind tilling when

gusty winds exceed 25 mph in the

Maricopa County area is more effective

at reducing 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 at least one

other BMP would be more effective at

reducing PM-10 which ACLPI claims,

without support, it would be.

Response: South Coast Rule 403 does

not require cessation of tilling on high

wind days. Rule 403 includes a list of

optional measures an affected source

can use to reduce PM-10. For

agricultural sources affected by Rule

403, the South Coast AQMD developed

a series of farming practices that can be

used by a grower as alternative means

to comply with the requirements of Rule

403. These practices are listed in "Rule

403 Agricultural Handbook: Measures to

Reduce Dust from Agricultural

Operations in the South Coast Air

Basin" ("Handbook"). If a 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 is found in Rule 403.1

("Wind Entrainment of Fugitive Dust").

The requirement is applicable only to

the Coachella Valley (Palm Springs area)

of the South Coast air basin and has a

number of exemptions. 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 of BMPs from

which a grower can select. The BMP

Committee and Arizona decided not to

require cessation of tilling on high wind

days as a provision in the general permit

for a number of technical and practical

reasons, the main ones being the

infrequency of high wind events in the

Phoenix area, especially in comparison

to the frequency of high wind events in

the Coachella Valley.

Based on local 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) of tilling

occurs during the high wind season (i.e.,

March through September). Within the

high wind season, only 4 percent 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 8 Based 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 of tilling on

high wind days would not be reasonable

because since it would impact a small

number of growers and provide minimal

reductions.

Arizona has provided a reasonable

justification for not requiring cessation

of tilling during high wind events. In

the Microscale plan, the State shows

that it was windblown dust from an

already tilled agricultural field and not

the active tilling of that field that

contributed to the 24-hour exceedance

at West Chandler. See Microscale plan,

pp. 16. In the serious area plan, the

State demonstrates that the BMP general

permit rule as adopted in combination

with other adopted measures provides

for expeditious attainment of the 24-

hour PM-10 standard in the Phoenix

area and is not necessary for expeditious

attainment of the annual standard in the

area. Finally, the State through its BMP

committee has determined that the

requirement for one BMP per category is

the most effective economically and

technologically feasible control measure

for agricultural sources in the Phoenix

area. Given all of this, the State has

17 In fact, 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, 7 hours 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.

18 The Coachella Valley is not the only

agricultural area in the South Coast district.

Riverside (outside of the Coachella Valley) and San

Bernardino Counties are the predominant

agricultural areas in the 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 of tilling requirement in these areas

unless a grower opts to use the practices listed in

the Handbook as the means of complying with Rule

403.

reasonably declined to mandate the

cessation of tilling during high winds

when faced with an absence of data that

it would make the BMP rule more

effective. 19

Comment: ACLPI asserts that because

Arizona is seeking an extension of the

PM-10 nonattainment date to December

31, 2006, it must show that its plan

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 stringent than the

general permit rule, noting that Rule 403

establishes six categories of

management practices and requires

operators to implement at least one of

the listed practices in 5 of 6 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 of tilling on high wind days is

included, each commercial farmer is

required to implement a minimum of

nine control measures and that

Arizona's program only requires a total

of three control measures. To qualify

and obtain an extension of the

attainment date, the Arizona SIP must

include agricultural measures that are at

least as stringent as Rule 403.

Response: Neither the CAA nor EPA

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 stringent measures found in

the implementation plan of other States

or used in practice that are feasible in

the area. See CAA section 188(e). We

interpret the MSM provision to not

require any measure that is infeasible on

technological or economic grounds, any

measure for insignificant 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 of the South Coast's

agricultural control measures (which are

found in Rules 403 and 403.1).

Agricultural operations are required to

comply with the provisions of Rule 403

unless the person responsible for such

19 We note that one exemption from Rule 403.1's

cessation of tilling requirement is when tilling

activities result in a net reduction of wind blown

fugitive dust, an exemption that is applicable only

if wind blown fugitive dust is not visible from tilled

soil, but is visible from untilled soil within the

same agricultural parcel. Rule 403.1 (h)(4)(B). This

exemption shows that there are some situations

when cessation of tilling during a high wind event

is actually counter-productive and thus it is not

always more effective to combine it with another

BMP.

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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 the requirement

to implement at least one of the listed

practices in 5 of 6 categories and three

measures in the Inactive category. A

grower, however, only has to implement

practices for those categories of

agricultural operations that they

actually have; thus if s/he does not have

one of the 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 of tilling 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 of the 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 it claims the program

requires each commercial farmer to

implement a minimum of nine

management practices. 20

We agree that in general Rule 403 (or

the Handbook) is likely 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 that because of the

lack of adequate technical information

concerning BMP costs and effectiveness,

requiring at least one BMP for the three

agricultural categories adequately

addressed agricultural sources of PM-10

in the Maricopa County nonattainment

area. ADEQ concluded that:

The agricultural general permit cannot

mirror South Coast Rule 403 for a variety of

reasons. One main reason is that agriculture

in Maricopa area is primarily flood irrigated.

The South Coast has dryland, irrigated, and

sprinkler irrigated agriculture. The actual

amount of irrigation water and frequency of

irrigation can effect wind erosion estimates

20 We also note that for inactive fields, the

Handbook allows agricultural operators to comply

with local jurisdiction requirements in lieu of

implementing three practices (Handbook, section II,

p. 4.) and that a field which has been withdrawn

from agricultural use in 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 of different control measures under different conditions.

Therefore, the BMPs for Maricopa County were based on practical applications during

those times when the fields were not flooded.

Also, because the application of more than

one BMP at a time for a selected category

would only provide incremental PM-10

reductions, sometimes at an uneconomical

cost, flexibility was provided in the rule to

allow the expert (the farmer) to decide what

BMP should be applied when and where.

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 on local factors because of the

variety, complexity, and uniqueness of

farming operations and because

agricultural sources vary by factors such

as regional climate, soil type, growing

season, crop type, water availability,

and relation to urban centers.

While the Committee surveyed

measures adopted in other geographic

areas, including South Coast, these

measures were of limited utility in

determining what measures 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 that requiring

more than one BMP could not be

considered technologically justified and

could cause an unnecessary economic

burden to farmers. BMP TSD, p. 18.

Adding to concerns about the

economic feasibility of requiring more

BMPs per farming activity is the general

uncertainty regarding the cost of the

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 of land farmed declined

by approximately 50 percent. This trend

is expected to continue. Finally, in

order to justify additional requirements

for farming operations in the area

beyond those in the general permit rule,

the BMP Committee determined that a

significant influx of money and

additional research would be needed.

Based on all of these factors, the BMP

Committee concluded that the

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 of the BMP

Committee. As noted previously, the

development of the 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 of PM-10 emissions from the

agricultural sector has ever been

attempted. We conclude that the Rule

403's and the Handbook's requirements

are neither technologically nor

economically feasible for Maricopa

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 that there is

no justification for relaxing the

stringency of Rule 403 because virtually

all of the control measures listed in Rule

403 are in the Arizona rule and so it is

clear that their implementation is

feasible. ACLPI asserts that Arizona's

contention that "the application of more

than one BMP at a time for a selected

category would only provide for

incremental PM-10 reductions

sometimes at an uneconomical cost," is

not supported by any competent data,

improperly delegates regulatory

discretion to the regulated community,

and ignores the clear mandates of the

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 of them into the

general permit rule. However, the

feasibility and adoption of any one BMP

has little relevance here because neither

Rule 403, the Handbook, nor the general

permit rule requires the implementation

of any specific BMP, rather they require

the implementation of at least one BMP

from a list of possible BMPs for each of

several categories of farm operations.

As has been noted many times before,

little data is available on the cost of

implementing specific BMPs in the

Phoenix area. Using what little data was

available and the technical expertise of

local farmers, state and federal

agricultural agencies, 21 and agricultural

experts from the University of Arizona,

Arizona determined that requiring the

implementation at least one BMP for

each of the three categories of

21 The BMP Committee is composed of five local

farmers, the Director of ADEQ, the Director of the

Arizona Department of Agriculture, the State

Conservationist for the United States Department of

Agriculture's (USDA) Natural Resources

Conservation Service (NRCS) state office, the Dean

of the University of Arizona's College of

Agriculture, and a soil scientist from the University

of Arizona.

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agricultural activities is the most

stringent level of control 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 do not agree that the general

permit rule improperly delegates

regulatory discretion to the regulated

community. The general permit rule

follows the same general control format

as Rules 310 and 310.01. This format

allows the regulated entity (e.g.,

construction site operator, vacant lot

owner, unpaved parking lot owner, etc.)

to choose from a list of options for

controlling its source. 22 For 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 time because of the need to impose

effective but reasonable and feasible

controls on a large 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 of MSM for a

number of significant source categories.

As much as (if not more so than) an

unpaved parking lot owner or a vacant

lot owner, a grower is in the best

position to determine which BMPs are

best and most effective for the

conditions on his/her farm.

Comment: ACLPI asserts that because

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 will be 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 used by many fugitive dust rules,

such as Rules 310 and 310.01 (and Rule

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

of rules 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

22 This control format is also used in South

Coast's fugitive dust rules, including Rules 403,

403.1, and 1186. We approved these rules on

December 9, 1998 (63 FR 67784).

assume that some fraction of the

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 of the regulated lots will

be paved, one-third will be graveled,

and one-third will be chemically

stabilized. See MAG 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 and their acreage in the

Phoenix area as well as on interviews of

growers in the Phoenix area about

which BMPs they would most likely use

in certain situations. The growers,

having intimate knowledge of the crops

and growing conditions in the area, are

the technical experts on how the BMP

rule will be implemented. By going to

the technical experts, URS and Arizona

reduced the level of uncertainty in the

emission reduction estimates to the

extent practicable.

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 of uncertainty

regarding actual emission reductions.

While it is possible that the reductions

could be less than expected, it is equally

plausible that the reductions will be

greater than expected.

We note that no matter how

specifically a rule is written, no one can

ever know for certain what the future

emission reductions from it will be.

Estimates of future emission reductions

require assumptions about future

activities that are always speculative to

a degree. In making emission reduction

estimates, we attempt to reduce the

uncertainties to the extent possible, but

we can never totally eliminate them.

Quantification of emission reductions

from rules is a necessary part of meeting

the Act's requirements for reasonable

further progress and attainment

demonstrations and quantitative

milestones. Beyond setting the

requirements (and requiring attainment

demonstrations be based on air quality

modeling, see, for example, CAA section

189(b)(1)(A)), the Act leaves it to 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 a result 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 or relies on mere commitments

and improperly excludes BACM for de

minimis sources. ACLPI asserts that the

plan improperly fails to analyze

whether the area would be in attainment

by the 2001 deadline if all BACM were

adopted and implemented on time.

Response: We have carefully reviewed

the plan and have found that it provides

for the implementation of BACM,

assures timely implementation of

measures, and relies on enforceable

commitments only where they are the

only feasible means of providing for the

implementation of BACM as required by

CAA section 189(b)(1)(B). See annual

standard proposal at 19984 and the 24-

hour standard proposal at 50273.

As we have discussed previously,

neither the CAA or EPA guidance

requires the implementation of all

BACM. Both only require that a state

provide for the implementation of best

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) and the

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 not be in

attainment of either PM-10 standard by

the end of 2001. This demonstration is

a necessary part of showing that the

plan correctly determines which source

categories are de minimis and which are

significant. See MAG 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 by the earliest

date practicable after December 31, 2001

because the plan fails to adopt all

feasible MSM, fails to implement some

measures in a timely manner or relies

on mere commitments and improperly

excludes MSM for de minimis sources.

ACLPI asserts that the plan improperly

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fails to analyze whether the area would

be in attainment earlier if all MSM were

adopted and implemented in a timely

manner.

Response: We have carefully reviewed

the plan and have found that it includes

all feasible MSM to our satisfaction,

assures timely implementation of

measures, and relies on enforceable

commitments only where they are the

only feasible means of providing for the

implementation of MSM or other

measures necessary for timely

attainment. See annual standard

proposal at 19984 and the 24-hour

standard proposal at 50274. We note

again that the Phoenix serious area plan

did not exclude any MSM on the basis

of de minimis source categories.

Comment: ACLPI comments that the

plan fails to include contingency

measures, noting the purpose of

contingency measures is to assure

continued progress toward attainment

while the SIP is being revised if a state

fails to make RFP or attain by the

applicable attainment date. ACLPI

asserts that if a state fails to make RFP

or timely attain, the obvious conclusion

is that the currently implemented

control measures are insufficient and

additional measures are needed and that

this is true regardless of whether the

implemented measures were relied

upon in the RFP and attainment

demonstrations and for this reason,

EPA's suggestion that the contingency

measure requirement can be satisfied by

committed measures that are

implemented but not relied upon in the

demonstrations defeats the purpose.

ACLPI contends that the 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. For the 24-hour

standard, the plan relies on the paving

or treatment of unpaved 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

or attain can be the result of the failure

to implement already committed to or

adopted controls, delays in the

implementation of control measures,

and noncompliance. In these cases,

correcting the implementation problem

or noncompliance corrects the RFP or

attainment failure.

There are a number of benefits to

allowing and even encouraging the early

implementation of contingency

measures. The chief benefit is that their

emission reductions and thus their

public health benefit are realized early.

Another is that it allows states to build

uncredited cushions into their

attainment and RFP demonstrations, a

cushion which makes actual failures to

make progress or attain less likely.

Measures that have 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 that the

Agricultural BMP general permit rule

cannot be used as a contingency

measure because it is not a "specific

measure[ ] to be undertaken if the 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

of other control measures that are not

part of the area's control strategy."

Response: We note that the

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 of Arizona's primary control

strategy for attaining the annual

standard. Emission reductions from the

rule are necessary to demonstrate RFP

and expeditious attainment of the 24-

hour standard and the State chose a

different measure, the unpaved road

measure, to serve as the contingency

measure for the 24-hour standard.

Nothing in CAA section 172(c)(9)

requires that contingency measure be

triggered only if there is a failure to

make RFP or to attain. Contingency

measure must be undertaken if there is

a failure to make RFP or attain but the

Act does not bar a state from using other

triggers as a reason to implement them,

e.g., a determination that the measure is

needed for attainment of another

standard or to meet another CAA

requirement. This is the case here; the

BMP general permit rule is both needed

for attainment of the 24-hour standard

and to meet the CAA's BACM

requirement.

Areas that must meet the BACM,

MSM, and "attainment by the earliest

alternative date practicable"

requirement are in a difficult position

when it comes to contingency measures.

Adopted but unimplemented

contingency measures are likely to be

feasible BACM and/or MSM. We

discussed this dilemma in the proposed

approval for the 24-hour standard at 24-

hour standard proposal at 50279:

Certain core control measure requirements

such as RACM, BACM, and MSM may result

in a state adopting and expeditiously

implementing more measures than are

strictly necessary for expeditious attainment

and/or RFP. Because of this and because

these core requirements effectively require

the implementation of all non-trivial

measures that are technologically and

economically feasible for the area, states are

left with few, if any, substantive

unimplemented control measures. In fact,

under the Act's PM-10 planning provisions,

if there were a measure or set of measures

that were technologically and economically

feasible and could collectively generate

substantial emission reductions, e.g., one

year's worth of RFP, then a state would be

hard pressed to justify withholding their

implementation.

If we read the CAA to demand that the

only acceptable contingency measure are

those that are adopted but not implemented,

then states face a difficult choice: adopt the

controls for immediate implementation and

clearly meet the core control measure

requirements but fail the contingency

measure requirement or adopt the control

measures but hold implementation in reserve

to meet the contingency measure requirement

but potentially fail the core control measure

requirements.

However, states do not need to face this

difficult choice if we read the CAA to allow

adopted and implemented measures to serve

as contingency measures, provided that those

measures' emission reductions are not

needed to demonstrate expeditious

attainment and/or RFP. There is nothing in

the language of section 172(c)(9) that

prohibits this interpretation.

ACLPI cites as EPA guidance, our

1995 proposed approval of the 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 stove buy back

program. At the time we proposed to

approve it as a contingency measure, the

program had been in operation for more

than two years and had 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," that is, not necessary for

attainment. See 60 FR 56129, 56132

(November 7, 1995). We finalized this

approval at 63 FR 5269 (February 2,

1998).

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V. Final Actions area PM-10 plan for the metropolitan

A. Approval of the Serious Area Plan Phoenix area. For the annual standard:

We are taking final action to approve

the following elements of the 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 for the 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-hour standard:

Base year emission inventory (section

172(c)(3)).

Demonstration that the plan provides for the implementation of RACM and BACM for each

significant source category (sections

189(a)(1)(c) and 189(b)(1)(b)):

" O n-road m otor vehicles ...........................

" Non-road motor vehicles .........................

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

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

" D isturbed vacant lots ...............................

" U npaved 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 P TSD, 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.

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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 of the Attainment Date necessary requirements for granting an C. Approvals of Rules and

extension of the 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)

M C ESD R ule 310 (Revised February 16, 2000) ............................................................................................... M arch 2, 2000.

M C ESD Rule 310.01 (Adopted February 16, 2000) .......................................................................................... M arch 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

1999 by the cities and town of the

metropolitan Phoenix area as well as by

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 if that revision

would interfere with any applicable

requirement concerning attainment and

RFP or any other applicable requirement

of the Act. We interpret section 110(l) to

mean, among other things, that we

cannot approve a plan revision if that

revision would mean that the state's

plans would no longer provide for

attainment or RFP as these are required

by the CAA or if the revision would

23 Because the woodbarning restrictions

ordinance is also a provision in the State's carbon

monoxide SIP, we have also considered the impact

mean that the State's plans would no

longer meet another applicable

requirement of the 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 of the previous version of Rule

310 approved in August, 1997 and of

the ordinance approved in November,

1999. In addition to the effect on

attainment and RFP, the "other

applicable requirement of the Act" that

we are concerned with here are the

Act's requirements for implementation

of RACM and BACM and the inclusion

in the plan of MSM.

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 of the

revised Rule 310, Rule 310.01, and the

woodburning ordinance.

We are also finding that the Phoenix

serious area plan provides for the

on the CO plan of approving the revised version.

The revision to the ordinance strengthens its PM10 provisions but does not make changes to its CO

implementation of RACM and BACM

and the inclusion of the MSM for the

sources subject to these rules and

ordinance (construction sites, unpaved

roads, unpaved parking lots, and

disturbed vacant lands, and residential

wood burning). Again, these findings

are in large part dependent on approval

of the revised Rule 310 and Rule 310.01.

We, therefore, find that the 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. Correction of Previous SIP

Disapprovals

We are finding that Arizona has

corrected the deficiencies that resulted

in the following disapprovals:

provisions; therefore, its approval will not interfere

CO SIP's provisions for attainment, RFP, or RACM.

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Federal 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 of the deficiencies that

caused the last two listed disapprovals

also permanently lifts the offset sanction

currently imposed but stayed on the

Phoenix area and ends the clock for

imposition of the highway funding

sanction.

The full approval of the metropolitan

Phoenix serious area PM-10 plan also

ends the FIP clock started by the

February 6, 1998 finding that the State

had failed to submit the plan 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 is not subject to review by the

Office of Management and Budget. For

this reason, this action is also not

subject to Executive Order 32111,

"Actions Concerning Regulations That

Significantly Affect Energy Supply,

Distribution, or Use" (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 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 approves pre-existing requirements

under state law and does not impose

any additional enforceable duty beyond

that required by state law, it does not

contain any unfunded mandate or

significantly or uniquely affect small

governments, as described in the

Unfunded Mandates Reform Act of 1995

(Public Law 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 67249, 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

approves a state plan and rules

implementing a Federal standard, and

does not alter the relationship or the

distribution of power 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 it is not

economically significant.

In reviewing SIP submissions, EPA's

role is to approve state choices,

provided that they meet the criteria of

the Clean Air Act. In this context, in the

absence of a prior existing requirement

for the State to use voluntary consensus

standards (VCS), EPA has no authority

to disapprove a SIP submission for

failure to use VCS. It would thus be

inconsistent with applicable law for

EPA, when it reviews a SIP submission,

to use VCS in place of a SIP submission

that otherwise satisfies the provisions of

the Clean Air Act. Thus, 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. section 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).

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 September 23,

2002. 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 52

Environmental protection, Air

pollution control, Incorporation by

reference, Intergovernmental relations,

Particulate matter, Reporting and

recordkeeping requirements.

Dated: January 14, 2002.

Wayne Nastri,

Regional Administrator, Region 9.

Part 52, chapter I, title 40 of the Code

of Federal 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 et seq.

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Subpart D-Arizona

2. Section 52.120 is amended by

adding paragraphs (c)(99), (100), (101),

and (102) to read as follows:

§52.120 Identification of plan.

(c) * * *

(99) Plan revisions submitted on

January 28, 2000 by the Governor's

designee.

(i) Incorporation by reference.

(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 by reference.

(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 (including Exhibit

A, 2 pages), adopted on February 14,

2000.

(B) City of Avondale, Arizona.

(1) Resolution No. 1711-97; A

Resolution of the City Council of the

City of Avondale, 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 (including Exhibit A, 14

pages), adopted on September 15, 1997.

(2) Resolution No. 1949-99; A

Resolution of the Council of the City of

Avondale, Maricopa County, Arizona,

Implementing Measures in the MAG

1998 Serious Area Particulate Plan for

PM-10 for the Maricopa County Area

(including Exhibit A, 7 pages), adopted

on February 16, 1999.

(C) Town of Buckeye, Arizona.

(1) Resolution No. 15-97; A

Resolution of the Town Council of the

Town of Buckeye, Maricopa County,

Arizona, To Implement Measures in the

MAG 1997 Serious Area Carbon

Monoxide Plan for the Maricopa County

Area (including Exhibit A, 5 pages),

adopted on October 7, 1997.

(D) Town of Carefree, Arizona.

(1) Town of Carefree Resolution No.

97-16; A Resolution of the Mayor and

Common Council of the 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

(including Exhibit A, 3 pages), adopted

on September 2, 1997.

(2) Town of Carefree Resolution No.

98-24; A Resolution of the Mayor and

Common Council of the Town of

Carefree, Arizona, To Implement

Measures in the MAG 1998 Serious Area

Particulate Plan for PM-10 for the

Maricopa County Area (including

Exhibit A, 4 pages), adopted on

September 1, 1998.

(3) Town of Carefree Ordinance No.

98-14; An Ordinance of the Town of

Carefree, Maricopa County, Arizona,

Adding Section 10-4 to the Town Code

Relating to Clean-Burning Fireplaces,

Providing Penalties for Violations (3

pages), adopted on September 1, 1998.

(E) Town of Cave Creek, Arizona.

(1) Resolution R97-28; A Resolution

of the Mayor and Town Council of the

Town of Cave 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 (including Exhibit A, 4

pages), adopted on September 2, 1997.

(2) Resolution R98-14; A Resolution

of the Mayor and Town Council of the

Town of Cave Creek, Maricopa County,

Arizona, To Implement Measures in the

MAG 1998 Serious Area Particulate Plan

for PM-10 for the Maricopa County

Area (including Exhibit A, 1 page),

adopted on December 8, 1998.

(F) City of Chandler, Arizona.

(1) Resolution No. 2672; A Resolution

of the City Council of the City of

Chandler, 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

(including Exhibit A, 16 pages), adopted

on August 14, 1997.

(2) Resolution No. 2929; A Resolution

of the City Council of the City of

Chandler, Arizona, To Implement

Measures in the MAG 1998 Serious Area

Particulate Plan for PM-10 for the

Maricopa County Area (including

Exhibit A, 9 pages), adopted on October

8, 1998.

(G) City of El 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 on August

28, 1997.

(2) Resolution No. R98-08-22; A

Resolution of the Mayor and Common

Council of the City of El 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 (including Exhibit A, 5 pages),

adopted on August 27,1998.

(3) Resolution No. R98-02-04; A

Resolution To Implement Measures in

the MAG 1997 Serious Area Particulate

Plan for PM-10 for the Maricopa County

Area (including Exhibit A, 5 pages),

adopted on February 12,1998.

(H) Town of Fountain Hills, Arizona.

(1) Resolution No. 1997-49; A

Resolution of the Common Council of

the Town of Fountain Hills, Arizona,

Adopting the MAG 1997 Particulate

Plan for PM-10 and MAG 1998 Serious

Area Carbon Monoxide Plan for the

Maricopa County Area and Committing

to Certain Implementation Programs

(including Exhibit B, 5 pages and cover),

adopted on October 2, 1997.

(2) Town of Fountain Hills Resolution

No. 1998-49; Resolution To Implement

Measures in the MAG 1998 Serious Area

Particulate Plan for PM-10 for the

Maricopa County Area (including

Exhibit A, 7 pages), adopted on October

1, 1998. [Incorporation Note:

Incorporated materials are pages 4 to 10

of the 11-page resolution package; pages

1 and 2 are cover sheets with no

substantive content and page 11 is a

summary of measures previously

adopted by the Town of Fountain Hills.]

(I) Town of Gilbert, Arizona.

(1) Resolution No. 1817; A Resolution

of the Common Council of the Town of

Gilbert, Maricopa County, Arizona,

Authorizing the Implementation of the

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

of the Common Council of the Town of

Gilbert, Arizona, Implementing

Measures in the MAG 1997 Serious Area

Particulate Plan for PM-10 for the

Maricopa County Area (including

Attachment A, 5 pages), adopted on

November 25, 1997. [Incorporation

note: Attachment A is referred to as

Exhibit A in the text of the Resolution.]

(3) Ordinance 1066; An Ordinance of

the Common Council of the Town of

Gilbert, Arizona Amending the Code of

Gilbert by Amending Chapter 30

Environment, by adding New Article II

Fireplace Restrictions Prescribing

Standards for Fireplaces, Woodstoves,

and Other Solid-Fuel Burning Devices

in New Construction; Providing for an

Effective Date of January 1, 1999;

Providing for Repeal of Conflicting

Ordinances; Providing for Severability

(3 pages), adopted on November 25,

1997.

(4) Resolution No. 1939: A Resolution

of the Common Council of the Town of

Gilbert, Arizona, Expressing its

Commitment to Implement Measures in

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the Maricopa Association of

Governments (MAG) 1998 Serious Area

Particulate Plan for PM-10 for the

Maricopa County Area (including

Attachment A, 5 pages), adopted on July

21, 1998. [Incorporation note:

Attachment A is referred to as Exhibit

A in the text of the Resolution.]

(J) City of Glendale, Arizona.

(1) Resolution No. 3123 New Series; A

Resolution of the Council of the 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 (including Exhibit A, 20

pages), adopted on June 10, 1997.

(2) Resolution No. 3161 New Series; A

Resolution of the Council of the City of

Glendale, Maricopa County, Arizona,

Implementing Measures in the MAG

1997 Serious Area Particulate Plan for

PM-10 for the Maricopa County Area

(including Exhibit A, 6 pages), adopted

on October 28, 1997.

(3) Resolution No. 3225 New Series; A

Resolution of the Council of the City of

Glendale, Maricopa County, Arizona,

Implementing Measures in the MAG

1998 Serious Area Particulate Plan for

PM-10 for the Maricopa County Area

(including Exhibit A, 9 pages), adopted

on July 28, 1998.

(K) City of Goodyear, Arizona.

(1) Resolution No. 97-604 Carbon

Monoxide Plan; A Resolution of the

Council of the City of Goodyear,

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 (including Exhibit A, 21

pages), adopted on September 9.

[Incorporation note: Adoption year not

given on the resolution but is

understood to be 1997 based on

resolution number.]

(2) Resolution No. 98-645; A

Resolution of the Council of the City of

Goodyear, Maricopa County, Arizona,

Implementing Measures in the MAG

1998 Serious Area Particulate Plan for

PM-10 for the Maricopa County Area

(including Attachment III, 7 pages),

adopted on July 27, 1998.

(L) City of Mesa, Arizona.

(1) Resolution No. 7061; A Resolution

of the City Council of the City of Mesa,

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 (including Exhibit A, 13 pages plus

index page), adopted on June 23, 1997.

(2) Resolution No. 7123; A Resolution

of the City Council of the City of Mesa,

Maricopa County, Arizona, to

Implement Measures in the MAG 1997

Serious Area Particulate Plan for PM-10

for the Maricopa County Area

(including Exhibit A, 10 pages), adopted

on December 1, 1997.

(3) Resolution No. 7360; A Resolution

of the City Council of the City of Mesa,

Maricopa County, Arizona, to

Implement Measures in the MAG

Serious Area Particulate Plan for PM-10

for the Maricopa County Area

(including Exhibit A, 8 pages), adopted

on May 3, 1999.

(4) Ordinance No. 3434; An

Ordinance of the City Council of the

City of Mesa, Maricopa County,

Arizona, Relating to Fireplace

Restrictions Amending Title 4, Chapter

1, Section 2 Establishing a Delayed

Effective Date; and Providing Penalties

for Violations (3 pages), adopted on

February 2, 1998.

(M) Town of Paradise Valley, Arizona.

(1) Resolution Number 913; A

Resolution of the Town of Paradise

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 (including Exhibit A, 9

pages), adopted on October 9, 1997.

(2) Resolution Number 945; A

Resolution of the Mayor and Town

Council of the Town of Paradise Valley,

Arizona, to Implement Measures in the

MAG 1998 Serious Area Particulate Plan

for PM-10 for the Maricopa County

Area (including Exhibit A, 5 pages),

adopted on July 23, 1998.

(3) Ordinance Number 454; An

Ordinance of the Town of Paradise

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 (5 pages),

adopted on January 22, 1998.

[Incorporation note: There is an error in

the ordinance's title, ordinance

amended only sections 5-13-1 to 5-13-

4; see section 1 of the ordinance.]

(4) Ordinance Number 450; An

Ordinance of the Town of Paradise

Valley, Arizona, Adding Section 5-1-7

to the Town Code Relating to CleanBurning Fireplaces, Providing Penalties

for Violations (3 pages), adopted on

December 18, 1997.

(N) City of Peoria, Arizona.

(1) Resolution No. 97-37; A

Resolution of the Mayor and Council of

the City of Peoria, 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 (including Exhibits A, 5 pages, and

B, 19 pages), adopted on June 17, 1997.

(2) Resolution No. 97-113; A

Resolution of the Mayor and Council of

the City of Peoria, Arizona, to

Implement Measures in the MAG 1997

Serious Area Particulate Plan for PM-10

for the Maricopa County Area and

Directing the Recording of This

Resolution with the Maricopa County

Recorder and Declaring an Emergency

(including Exhibit A, 8 pages plus index

page), adopted on October 21, 1997.

(3) Resolution No. 98-107; A

Resolution of the Mayor and Council of

the City of Peoria, Arizona, to Approve

and Authorize the Acceptance to

Implement Measures in the MAG 1998

Serious Area Particulate Plan for PM-10

for the Maricopa County Area

(including Exhibit A, 7 pages), adopted

on July 21, 1998.

(0) City of Phoenix, Arizona.

(1) Resolution No. 18949; A

Resolution Stating the City's Intent to

Implement Measures to Reduce Air

Pollution (including Exhibit A, 19

pages), adopted on July 2, 1997.

(2) Resolution No. 19006; A

Resolution Stating the City's Intent to

Implement Measures to Reduce Air

Pollution (including Exhibit A, 13

pages), adopted on November 19, 1997.

(3) Ordinance No. G4037; An

Ordinance Amending Chapter 39,

Article 2, Section 39-7 of the Phoenix

City Code by Adding Subsection G

Relating to Dust Free Parking Areas; and

Amending Chapter 36, Article XI,

Division I, Section 36-145 of the

Phoenix City Code Relating to Parking

on Non-Dust Free Lots, adopted on July

2, 1997 (5 pages).

(4) Resolution No. 19141; A

Resolution Stating the City's Intent to

Implement Measures to Reduce

Particulate Air Pollution (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 that the Provisions of this

Ordinance Shall Take Effect on

December 31, 1998 (5 pages), adopted

on December 10, 1997.

(P) Town of Queen Creek, Arizona.

(1) Resolution 129-97; A Resolution

of the Town Council of the 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 (including Exhibit A, 3

pages), adopted on June 4, 1997.

(2) Resolution 145-97; A Resolution

of the Town Council of the Town of

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Queen Creek, Maricopa County, Arizona

to Implement Measures in the MAG

1997 Serious Area Particulate Plan for

PM-10 for the Maricopa County Area

(including Exhibit A, 1 page), adopted

on November 5, 1997.

(3) Resolution 175-98; A Resolution

of the Town Council of the 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 of Scottsdale, Arizona.

(1) Resolution No. 4864; A Resolution

of the City of Scottsdale, 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

(including Exhibit A, 13 pages), adopted

on December 1, 1997.

(3) Resolution No. 5100; A Resolution

of the City of Scottsdale, Maricopa

County, Arizona, To Strengthen

Particulate Dust Control and Air

Pollution Measures in the Maricopa

County Area (including Exhibit A, 10

pages), adopted on December 1, 1998.

(R) City of Surprise, 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, 4 pages), 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 (including Exhibit A, 3 pages),

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 (including Exhibit A, 6 pages),

adopted on September 10, 1998.

(s) City of Tempe, 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 (including Exhibit A, 18

pages), adopted on June 12, 1997.

(2) Resolution No. 97.71, Resolution

of the Council of the City of Tempe

Stating Its Intent to Implement Measures

in the MAG 1997 Serious Area

Particulate Plan for PM-10 for the

Maricopa County Area (including

Exhibit A, 6 pages), adopted on

November 13, 1997.

(3) Resolution No. 98.42, Resolution

of the Council of the City of Tempe

Implementing Measures in the MAG

1998 Serious Area Particulate Plan for

PM-10 for the Maricopa County Area

(including Exhibit A, 8 pages), adopted

on September 10, 1998.

(T) City of Tolleson, Arizona.

(1) Resolution No. 788, A Resolution

of the Mayor and City Council of the

City of Tolleson, Maricopa County,

Arizona, Implementing Measures in the

Maricopa Association of Governments

(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 on June

10, 1997.

(2) Resolution No. 808, A Resolution

of the Mayor and City Council of the

City of Tolleson, Maricopa County,

Arizona, Implementing Measures in the

Maricopa Association of Governments

(MAG) 1998 Serious Area Particulate

Plan for PM-10 for the Maricopa County

Area (including Exhibit A), adopted on

July 28, 1998.

(3) Ordinance No. 376, N.S., An

Ordinance of the City of Tolleson,

Maricopa County, Arizona, Amending

Chapter 7 of the Tolleson City Code by

Adding a New Section 7-9, Prohibiting

the Installation or Construction of a

Fireplace or Wood Stove Unless It Meets

the Standards Set Forth Herein

(including Exhibit A, 4 pages), adopted

on December 8, 1998.

(U) Town of Wickenburg, 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 (including Exhibit A, 4

pages), adopted on August 18, 1997.

(V) Town of Youngtown, Arizona.

(1) Resolution No. 97-15, Resolution

To Implement Measures in the MAG

1997 Serious Particulate Plan for PM-10

and MAG 1998 Serious Area Carbon

Monoxide Plan for the Maricopa County

Area (including Exhibit 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

(including Exhibit A, 8 pages), adopted

on August 20, 1998.

(3) Resolution No 98-05: Resolution

Stating Intent to Work Cooperatively

with Maricopa County to Control the

Generation of Fugitive Dust Pollution

(including Exhibit A, 2 pages), adopted

February 19, 1998.

(W) Maricopa County, Arizona.

(1) Resolution to Implement Measures

in the MAG 1997 Serious Area

Particulate Plan for PM-10 and MAG

1A998 Serious Area Carbon Monoxide

Plan for the Maricopa County Area

(including Exhibit A, 16 pages), adopted

on June 25, 1997. [Incorporation note:

"1A998" error in the original.]

(2) Resolution to Implement Measures

in the MAG 1997 Serious Area

Particulate Plan for PM-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 for PM-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 for PM-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 for PM-10 and MAG

1998 Serious Area Carbon Monoxide

Plan for the Maricopa County Area

(including Exhibit A, 24 pages plus

index page), adopted on June 20, 1997.

(2) Resolution to Implement Measures

in the MAG 1998 Serious Area

Particulate Plan for PM-10 for the

Maricopa County Area (including

Exhibit A, 8 pages), adopted on July 17,

1998.

(Y) Regional Public Transportation

Authority, Phoenix, Arizona.

(1) Resolution #9701: 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, 23 pages),

adopted on June 12, 1997.

(Z) State of Arizona.

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

(i) Incorporation by reference.

(A) Maricopa County Environmental

Services Department.

(1) Rule 310 revised on February 16,

2000.

(2) Rule 310.01 adopted on February

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 by reference.

(1) Maricopa County, Arizona.

(1) Resolution to Update Control

Measure 6 in the Revised MAG 1999

Serious Area Particulate Plan for PM-10

for the Maricopa County Area

(including Exhibit A, 2 pages), adopted

on December 19, 2001.

3. Section 52.123 is amended by

removing and reserving paragraph

(f)(1)(i)and adding paragraph (j) to read

as follows:

§52.123 Approval status.

(j) The Administrator is approving the

following elements of the Metropolitan

Phoenix PM-10 Nonattainment Area

Serious Area PM-10 Plan as contained

in Revised Maricopa Association of

Governments 1999 Serious Area

Particulate Plan for PM-I 0 for the

Maricopa County Nonattainment Area,

February 2000, submitted February 16,

2000 and Maricopa County PM-I 0

Serious Area State Implementation Plan

Revision, Agricultural Best Management

Practices (BMP), ADEQ, June 2000,

submitted on June 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 of the

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 of attainment

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 of reasonable

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 Clean Air Act section

189(c).

(7) The inclusion of the 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 of PM-10 precursors do not

contribute significantly to violations for

the annual and 24-hour PM-10 NAAQS

pursuant to Clean Air Act section

189(e).

(9) The contingency measures for the

annual and 24-hour PM-10 NAAQS

pursuant to Clean Air Act section

1 72(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 Clean Air 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

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