[Federal Register Volume 66, Number 104 (Wednesday, May 30, 2001)]
[Rules and Regulations]
[Pages 29230-29236]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-13512]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[AZ-098-0025; FRL-6989-1]


Determination of Attainment of the 1-Hour Ozone Standard for the 
Phoenix Metropolitan Area, Arizona and Determination Regarding 
Applicability of Certain Clean Air Act Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is determining that the Phoenix metropolitan serious ozone 
nonattainment area has attained the 1-hour ozone air quality standard 
by the deadline required by the Clean Air Act (CAA), November 15, 1999. 
Based on this determination, we also are determining that the CAA's 
requirements for reasonable further progress and attainment 
demonstrations and for contingency measures for the 1-hour ozone 
standard are not applicable to the area for so long as the Phoenix 
metropolitan area continues to attain the 1-hour ozone standard.

EFFECTIVE DATE: June 29, 2001.

FOR FURTHER INFORMATION CONTACT: Doris Lo, Office of Air Planning (AIR-
2), U.S. Environmental Protection Agency, Region 9, 75 Hawthorne 
Street, San Francisco, California 94105. (415) 744-1287, 
<a href="/cdn-cgi/l/email-protection#f69a99d89299849f85b6938697d8919980"><span class="__cf_email__" data-cfemail="b2dedd9cd6ddc0dbc1f2d7c2d39cd5ddc4">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Attainment Finding
    A. Response to Comments on the Proposed Finding of Attainment
    B. Attainment Finding for the Phoenix Area
III. Applicability of Clean Air Act Planning Requirements
    A. EPA's Policy on the Applicability of Certain CAA Planning 
Requirements in Areas Attaining the 1-Hour Ozone Standard
    B. Response to Comments on EPA's Policy

[[Page 29231]]

    C. Effects of the Determination on the Phoenix Area and of a 
Future Violation on this Determination
    D. Effect of the Determination on Transportation Conformity
IV. Administrative Requirements

I. Background

    Under CAA section 181(b)(2)(A), we must determine within six months 
of an area's applicable attainment date whether an ozone nonattainment 
area has attained the 1-hour ozone standard. On May 19, 2000 (65 FR 
31859), we proposed to find that the Phoenix metropolitan serious ozone 
nonattainment area had attained the 1-hour ozone standard by its Clean 
Air Act (CAA) mandated attainment date of November 15, 1999. This 
proposal was based on all available, quality-assured air quality data 
collected from the monitoring network, which we determined met our 
regulations for state air quality monitoring networks.

II. Attainment Finding

A. Response to Comments on the Proposed Finding of Attainment

    We received comments on our proposed attainment finding only from 
the Arizona Center for Law in the Public Interest (ACLPI). These 
comments concerned the adequacy of the Phoenix area ozone monitoring 
network. We respond to the most important of these comments below. Our 
complete responses to all comments can be found in the technical 
support document (TSD) for this action.
    Comment: ACLPI claims that EPA's proposed rulemaking contains no 
evidence that Maricopa County Environmental Services Department (MCESD) 
has made changes to its ozone network in response to the inadequacies 
documented by EPA in the past. It also asserts that the County and the 
State have apparently discontinued the use of certain monitoring sites 
and states it found particularly troubling the discontinuance of the 
Papago Park monitor, which recorded the highest ozone violation in 
1995.
    Response: We agree that the Maricopa County ozone monitoring 
network was deficient when evaluated by EPA in 1989 and 1992. However, 
rather than reviewing all of the past inadequacies and determining 
whether the County addressed each one, we decided that a more 
reasonable approach was to evaluate the ozone monitoring network 
operated by MCESD as it existed during the attainment period 1997-1999. 
We have worked successfully with the MCESD over the past 9 years to 
improve its ambient monitoring program. We have determined that the 
ozone monitoring network as designed and operated during the attainment 
period, and at present, meets all applicable federal regulations. By 
concluding that the network meets our monitoring regulations, we 
effectively concluded that MCESD has corrected all past inadequacies.
    The issue of whether or not the County and/or State has 
discontinued the operation of certain sites is not as important as 
whether the remaining network is designed and operated in a manner that 
allows the determination that the data collected are representative of 
ozone air quality in the Phoenix area. We have concluded that the 
network is sufficient to serve that purpose.
    The Papago Park ozone monitor is still operating but has been 
renamed ``Emergency Management.'' Papago Park was the name given to the 
site by the Arizona Department of Environmental Quality (ADEQ) which 
initially operated the site. When the County took over the site, it was 
renamed Emergency Management. The site has been in continuous operation 
since it was established in 1990.
    Comment: ACLPI asserts that EPA acknowledged that the ozone network 
in Phoenix still fails to meet all of the design requirements of 40 CFR 
part 58 in that the network does not meet the third monitoring 
objective, ``determining the impact on ambient pollution levels of 
significant sources or source categories,'' which can be met by 
monitoring emissions from significant sources of nitrogen oxides 
(NO<INF>X</INF>) and volatile organic compounds (VOC).
    Response: We stand by our position that in designing an ozone 
monitoring network--that is, a monitoring network that measures the 
concentration of the chemical compound ``ozone'' (O<INF>3</INF>)--an 
agency cannot meet the third monitoring objective of assessing the 
impact of major sources or source categories since ozone is not emitted 
by any type of source. Ozone is formed in an atmospheric, photochemical 
reaction between NO<INF>X</INF> and VOC. Precursor emissions from a 
source are transported well downwind before they react to form ozone. 
In an urban setting, emissions from large point sources mix with 
emissions from area and mobile sources as they are transported downwind 
and form ozone. In this setting, it is impossible to monitor 
specifically for ozone formed from a single source's precursor 
emissions.
    For areas designated as transitional, marginal, and/or moderate 
ozone nonattainment areas, there is no requirement to monitor for the 
chemical precursors of ozone. Once an area is designated or 
reclassified to serious or above, the state is required to institute a 
photochemical assessment monitoring (PAMS) program under CAA section 
182(c)(1) and its implementing regulations. PAMS programs require the 
seasonal monitoring of VOC and NO<INF>X</INF> at certain locations in 
urban nonattainment areas such as downwind of the area's central 
business district (type 2 site) and in the downwind area(s) where 
maximum ozone concentrations are expected to occur (type 3 site).
    When we reclassified the Phoenix area as serious in 1997, the 
design and deployment of a PAMS network became a requirement for the 
area. ADEQ has begun the implementation of the area's PAMS network and 
has deployed a type 2 site and is in the process of installing a type 3 
site at this time. ADEQ's implementation schedule is generally 
consistent with our PAMS regulations. These sites are appropriately 
located to meet the PAMS siting requirements. The requirement for 
operating a PAMS network remains even though we are making a finding 
that the Phoenix area has attained the 1-hour ozone NAAQS. Data from 
the PAMS network, however, are not and cannot be used in making a 
determination of whether or not an area has met the ozone NAAQS because 
the network only monitors for ozone precursors and not for ozone 
itself.
    Comment: ACLPI asserts that Maricopa County's monitoring network is 
inadequate because the County fails to operate all of its SLAMS sites 
year-round, stating that EPA regulations require states to monitor 
ozone at NAMS and SLAMS sites throughout the ozone season and that the 
ozone season in Arizona runs from January through December citing 40 
CFR part 58, appendix D. ACLPI also claims that despite these 
regulations, more than half of the County's SLAMS sites operate only 
between April 1 and October 31. While exceedances of the 1-hour ozone 
standard may be rare during the winter months, they can occur. 
Consequently, there is no assurance that these exceedances would be 
captured by one of the annually operating sites due to wide spatial and 
temporal differences in ozone concentrations.
    Response: We disagree with ACLPI's assertion that the ozone 
monitoring network is inadequate because a portion of the monitoring 
sites operates on a seasonal basis. Our regulations at 40 CFR 58.25 
allow states to make modifications to their SLAMS network with the 
approval of EPA. The County made this modification to its operating 
schedule with the full concurrence of EPA Region 9 (see letter to Ben 
Davis, Air Quality AIRS Program Coordinator,

[[Page 29232]]

MCESD, from John R. Kennedy, Chief, Technical Support Office, Air 
Division, U.S. EPA Region 9, November 2, 1999). Moreover, we believe 
that the monitoring network, even with the seasonal monitors shut down, 
still provides for adequate spatial coverage of the Phoenix 
nonattainment area during the winter months. During the five months 
(November through March) the County shuts down eight sites--less than 
half of the ozone monitoring sites--leaving functional the remaining 
ozone network of ten sites operated by the County as well as a number 
of special purpose monitoring sites operated by ADEQ. The sites that 
are operated seasonally are generally the sites recording the lowest 
ozone concentrations.
    Regarding the possibility of exceedances of the 1-hour ozone 
standard during the November to March period, we have reviewed ozone 
data for the Phoenix area during the period 1980 through 1999. In these 
19 years, the Phoenix area has had only one exceedance in the month of 
April, three in the month of October, and none in the months of 
November, December, January, February and March. The vast majority of 
ozone exceedances in the Phoenix area occur in the months of June, 
July, August, and September when the full network is in operation.
    We do agree with ACLPI's statement that ozone air monitoring serves 
other purposes besides recording exceedances. We believe that portion 
of the network that operates year round provides adequate data for any 
other assessment purpose.

B. Attainment Finding for the Phoenix Area

    The 1-hour ozone NAAQS is 0.12 parts per million (ppm) not to be 
exceeded on average more than one day per year over any three-year 
period. 40 CFR 50.9 and appendix H. We determine if an area has 
attained the 1-hour standard by calculating, at each monitor, the 
average number of days over the standard per year during the preceding 
three-year period.\1\ We use all available, quality assured monitoring 
data. Under CAA section 181(b)(2)(A), we must base our determination of 
attainment or failure to attain on the area's design value as of its 
applicable attainment deadline, which for the Phoenix metropolitan area 
was November 15, 1999. (See section III.C. for a discussion of air 
quality data after November 15, 1999 and consequences of future 
violations.)
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    \1\ See generally 57 FR 13506 (April 16, 1992) and Memorandum 
from D. Kent Berry, Acting Director, Air Quality Management 
Division, EPA, to Regional Air Office Directors; ``Procedures for 
Processing Bump Ups and Extensions for Marginal Ozone Nonattainment 
Areas,'' February 3, 1994 (Berry memorandum). While explicitly 
applicable only to marginal areas, the general procedures for 
evaluating attainment in this memorandum apply to the Phoenix area 
in spite of its serious classification because the finding of 
attainment is being made pursuant to the same Clean Air Act 
requirements in section 181(b)(2).
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    The design value for the Phoenix metropolitan ozone nonattainment 
area for the 1997 to 1999 period was 0.113 ppm. The Phoenix 
metropolitan area did not record any exceedances of the 1-hour ozone 
standard at any monitoring site during the 1997 to 1999 period, so the 
average number of days over the standard at each monitor in the area 
for that three-year period was zero. The complete documentation of the 
monitoring data and design value calculation can be found in the TSD.
    Because the area's design value was below the 0.12 ppm 1-hour ozone 
standard and the area averaged less than 1 exceedance per year at each 
monitor for the 1997 to 1999 period, we find that the Phoenix 
metropolitan area attained the 1-hour ozone standard by its Clean Air 
Act mandated attainment deadline of November 15, 1999.

III. Applicability of Clean Air Act Planning Requirements

A. EPA's Policy on the Applicability of Certain CAA Planning 
Requirements in Areas Attaining the 1-Hour Ozone Standard

    CAA section 182(c) requires states with serious ozone nonattainment 
areas to comply with the Act's serious area SIP requirements. Three of 
these requirements are tied to the attainment demonstration. They are 
as follows:
    1. A demonstration that this plan will result in emission 
reductions of ozone precursors of at least 3 percent per year from 1996 
to 1999 (this provision is known as the 9 percent rate of progress 
(ROP) plan), CAA section 182(c)(2)(B);
    2. A demonstration that the plan will result in attainment of the 
1-hour ozone standard as expeditiously as practicable but not later 
than November 15, 1999, CAA section 182(c)(2)(A);
    3. Contingency measures that will be undertaken if the area fails 
to make reasonable further progress, meet a rate of progress milestone, 
or to attain the standard by the applicable attainment date, CAA 
sections 172(c)(9) and 182(c)(9).
    We believe that it is reasonable to interpret the CAA to not 
require these provisions for serious ozone nonattainment areas that are 
determined to be meeting the 1-hour ozone standard. We discuss our 
reasoning in the memorandum from John S. Seitz, Director, OAQPS, EPA, 
to Regional Air Directors, entitled ``Reasonable Further Progress, 
Attainment Demonstrations, and Related Requirements for Ozone 
Nonattainment Areas Meeting the Ozone National Ambient Air Quality 
Standard,'' May 10, 1995 (Seitz memo), in the proposal for this action 
and below in our response to comments.\2\
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    \2\ We have also explained at length in other actions our 
rationale for the reasonableness of this interpretation of the Act 
and incorporate those explanations by reference here. See 61 FR 
20458 (May 7, 1996) (Cleveland-Akron-Lorrain, Ohio); 60 FR 36723 
(July 18, 1995) (Salt Lake and Davis Counties, Utah); 60 FR 37366 
(July 20, 1995) and 61 FR 31832-33 (June 21, 1996) (Grand Rapids, 
MI). Our interpretation has also been upheld by the United States 
Court of Appeals for the 10th Circuit in Sierra Club v. EPA, 99 F.3d 
1551 (10th Cir. 1996).
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    There are a number of other SIP requirements for serious ozone 
nonattainment areas that are not tied to whether the area has attained 
the 1-hour standard. These elements include an emission inventory of 
ozone precursors, reasonably available control technology for major 
sources and certain other sources; an enhanced motor vehicle inspection 
and maintenance program, and an enhanced ambient monitoring program. 
Arizona has already adopted and submitted these elements to us.\3\
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    \3\ Serious Area Ozone State Implementation Plan for Maricopa 
County; submitted to EPA by the Arizona Department of Environmental 
Quality on December 14, 2000,
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B. Response to Comments on EPA's Policy

    ACLPI also commented on the proposed determination regarding the 
applicability of certain CAA planning requirements to the Phoenix area. 
We respond to the most significant of these comments below. Our full 
response to all comments can be found in the TSD.
    Comment: ACLPI claims that EPA has illegally exempted the Phoenix 
area from the 9 percent rate of progress (ROP) \4\ demonstration, 
attainment demonstration and contingency measure requirements of the 
CAA. To support this contention, ACLPI makes two arguments:
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    \4\ Although section 182(b)(1) (moderate areas) and (c)(2)(B) 
(serious areas) contain the term ``reasonable further progress,'' 
EPA often uses the terms ``rate of progress'' and ``reasonable 
further progress'' interchangeably.
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    (1) that, taken together, sections 172(c) and 182(c) require that a 
plan revision for a serious ozone nonattainment area include an 
attainment demonstration (sections 172(c)(1) and 182(c)(2)(A)), a 9 
percent ROP demonstration (sections 172(c)(2) and 182(c)(2)(B)), and 
contingency measures (section 172(c)(9)); and
    (2) that the May 10, 1995 policy memorandum on which EPA relies to

[[Page 29233]]

exempt the Phoenix area from these requirements flatly contradicts the 
CAA in that the Act contains no exceptions from its planning 
requirements for areas that are potentially eligible for redesignation 
based on monitoring data but have not yet met the redesignation 
requirements of sections 107(d)(3) and 175A. ACLPI contends that under 
section 175A of the Act until a nonattainment area is redesignated and 
a maintenance plan is approved, the requirements of part D ``shall 
continue in force and effect with respect to such area.'' (ACLPI 
acknowledges that the United States Court of Appeals for the 10th 
Circuit has upheld the May 10, 1995 memorandum but states that the case 
was incorrectly decided.)
    Response: We proposed to find that these Clean Air Act requirements 
are not applicable to the Phoenix area because the area has attained 
the 1-hour ozone standard as demonstrated by three consecutive years 
without a violation. In the proposal for today's action, we discuss our 
determination that the Phoenix area attained the 1-hour ozone standard 
by its statutory deadline of November 15, 1999. See 65 FR 31859, 31861. 
This determination is documented in section II of the TSD.
    The statutory basis for finding that these planning requirements 
are not applicable is described in the proposal and in the Seitz memo. 
See 65 FR 31859, 31861-31863; Seitz memo at 2-5.
    Contrary to ACLPI's assertion, we are not granting the Phoenix area 
an exemption from any applicable requirements under part D. Rather, we 
have interpreted the requirements of sections 182(c)(2)(A) and (B) and 
172(c)(9) as not being applicable once an area has attained the 
standard, as long as it continues to do so. (See section III.C. below.) 
This is not a waiver of requirements that by their terms clearly apply; 
it is a determination that certain requirements are written so as to be 
operative only if the area is not attaining the standard. Our 
interpretation is consistent both with the CAA's goal of achieving and 
maintaining clean air, and with the concomitant policy goal of avoiding 
costly and unnecessary emission reductions.
    As discussed further below, the plain language of CAA sections 
182(c)(2)(A) and (B) and 172(c)(9) does not clearly require attainment, 
reasonable further progress or contingency measure plans for areas that 
are designated nonattainment but that have already attained, and 
continue to attain, the national ozone standard. However, the very 
purpose of these plans is to bring areas that are violating the 
national ambient air quality standard for ozone into attainment. 
Consistent with this purpose, we interpret these requirements as 
inapplicable to an area that has attained the standard, but only for so 
long as the area remains in attainment. The requirements will again 
apply if such an area violates the standard. Thus, our interpretation 
is strictly limited to circumstances in which no further emission 
reductions are required for attainment.
    The language of CAA sections 182(c)(2)(A) and (B) is ambiguous as 
to whether VOC reductions are required for serious nonattainment areas 
that have already attained the ozone NAAQS, but that have not yet been 
redesignated to attainment status. While the lead-in sentence to these 
two requirements states that ``* * * the State shall submit a revision 
to the applicable implementation plan * * *,'' subsection (c)(2)(A) 
calls for a demonstration that the plan will provide for attainment of 
the NAAQS ``by the applicable attainment date.'' Subsection (c)(2)(B) 
provides that the 9 percent plan ``will result in VOC emissions 
reductions * * * until the attainment date.'' Thus, the language of 
sections 182(c)(2)(A) and (B) as a whole begs the question of whether 
any reductions are required for areas that are already in attainment 
and therefore need no reductions in VOC emissions to achieve the ozone 
NAAQS by the attainment date.
    Section 182(c)(2)(B) is entitled ``Reasonable Further Progress 
demonstration.'' The term ``reasonable further progress'' is defined as 
``such annual incremental reductions in emissions of the relevant air 
pollutant as are required by this part or may reasonably be required by 
[EPA] for the purpose of ensuring attainment of the applicable [NAAQS] 
by the applicable date.'' CAA section 171(1). This definition applies 
for the purposes of part D of title I of the CAA, which includes 
section 182(c). Thus, the term ``reasonable further progress'' requires 
only such reductions in emissions as are necessary to attain the NAAQS 
by the attainment date and no more. Accordingly, our interpretation of 
section 182(c)(2)(B) is consistent with the statutory definition of 
``reasonable further progress.'' Moreover, our interpretation is 
tightly bound to the purpose of section 182(c)(2)(B) because we 
interpret that section's requirements to be applicable to areas that 
lapse back into violation prior to redesignation, and which therefore 
need additional progress towards attainment.
    Furthermore, our interpretation of the requirements of section 
182(c)(2)(B) is consistent with our interpretation of the general 
reasonable further progress requirements of CAA section 172. In the 
General Preamble interpreting certain provisions of part I of the CAA 
Amendments of 1990, we explained that the reasonable further progress 
requirements of CAA section 172(c)(2) do not apply when ``evaluating a 
request for redesignation to attainment, since, at a minimum, the air 
quality data for the area must show that the area has already attained 
[the NAAQS] * * * [and] RFP towards attainment will, therefore, have no 
meaning at that point.'' 57 FR at 13564. This interpretation of the 
requirements of section 172(c) was made shortly after the CAA 
Amendments of 1990 and we have consistently adhered to this 
interpretation. See 60 FR at 30190 (noting consistency of 
interpretation).
    As with the RFP requirement, if an area has in fact monitored 
attainment of the standard, we believe there is no need for an area to 
make a further submission containing additional measures to achieve 
attainment. Thus the attainment demonstration requirement in section 
182(c)(2)(A) would no longer apply under these circumstances. Seitz 
memo at 3.
    We likewise determined that section 172(c)(9) does not require a 
contingency measure plan for nonattainment areas, such as Phoenix, 
which we determine to have attained the standard prior to 
redesignation. The contingency measures plan is required for an area 
that ``fails to make reasonable further progress, or to attain the 
[NAAQS] by the attainment date * * *'' If, as in the case of Phoenix, 
we determine that an area has attained the standard by its attainment 
date, then by definition such an area is not one to which contingency 
measures apply. There is simply no failure to attain by the attainment 
date or make progress for which additional measures need be contingent. 
However, as with sections 182(c)(2)(A) and (B), we interpret section 
172(c)(9)'s requirements to be applicable to areas that lapse back into 
violation prior to redesignation, and that therefore need additional 
progress towards attainment. Thus, our interpretation ensures that the 
purposes of section 172(c)(9)--to provide for reasonable progress 
towards, and the attainment of, clean air--will be served when 
necessary.
    We also do not agree with ACLPI's contention that the Agency is 
violating section 175A(c) when it determines that the RFP, attainment 
and contingency measure requirements do not apply to areas that have 
attained the NAAQS.

[[Page 29234]]

Section 175A(c) provides that the requirements of part D remain in 
force and effect for an area until such time as it is redesignated. 
Section 175A(c) does not establish any additional substantive 
requirements; rather, it ensures that the requirements that do apply by 
virtue of other Act provisions continue to apply until an area is 
redesignated. If, however, an Act provision does not apply to an area 
or does not require that the particular area in question submit a SIP 
revision, section 175A(c) does not somehow add to the requirements with 
which the area must comply. In this instance, EPA is interpreting the 
underlying substantive requirements at issue so as not to apply to 
areas for so long as they continue to attain the standard. This does 
not violate section 175A(c); it is an interpretation of the substance 
of other provisions of the Act, a matter that is not affected by 
section 175A(c). Other requirements that do not depend on whether the 
area has attained the standard, such as VOC RACT requirements, continue 
to apply, however, and section 175A(c) ensures that they continue to 
apply until the area is redesignated.
    Finally, in Sierra Club, the Tenth Circuit Court of Appeals upheld 
the Seitz memo as it applies to moderate ozone nonattainment areas. 
There, pending completion of the redesignation process, and based on 
three years of air quality data, EPA found that two Utah Counties that 
were designated as nonattainment for ozone and classified as moderate 
had attained the ozone NAAQS. As a result, EPA determined that the 
CAA's moderate area requirements for attainment and RFP demonstrations, 
and contingency measures (sections 182(b)(1)(A) and 172(c)(9)) were 
inapplicable. Finding that this determination was a logical extension 
of EPA's original, general interpretation in the General Preamble, the 
Court accorded deference to EPA's interpretation that once a moderate 
ozone nonattainment area has attained the NAAQS, the moderate area CAA 
requirements for RFP, attainment and contingency measures no longer 
apply. Id. at 1556. Although the Phoenix area is a serious 
nonattainment area, there is no doubt that the analogous serious area 
provisions serve exactly the same purpose as the provisions at issue in 
Sierra Club for moderate areas. Thus the Court's reasoning in that case 
applies equally to the Phoenix situation.
    Comment: As stated above, ACLPI claims that the Act specifically 
requires that until a nonattainment area is redesignated and a 
maintenance plan approved the requirements of part D remain in force 
and effect with respect to such area, citing CAA section 175A(c). ACLPI 
argues that ``Congress determined that in the interest of protecting 
public health, EPA should not be permitted to waive nonattainment 
planning requirements until states could provide sufficient assurances 
that the NAAQS would be permanently maintained'' and that ``it is not 
the place of EPA to second guess this policy determination.''
    Response: The requirement that states provide sufficient assurances 
that the NAAQS will be permanently maintained is a criterion for the 
redesignation of an area to attainment under section 107(d)(3)(E) and 
not for a finding of attainment under section 181(b)(1). We did not 
propose to redesignate the Phoenix area to attainment. Before we can do 
that, Arizona will need to provide, among other things, sufficient 
assurances in the form of an adequate maintenance plan that the NAAQS 
will be ``permanently'' maintained. As we have stated above we are not 
waiving these requirements but are determining that by the language of 
the CAA, they do not apply.
    Comment: ACLPI also argues that there is a sound public policy 
reason for the Act's approach because a state's monitored compliance 
with a NAAQS may reflect only a temporary improvement in air quality 
due to unusually favorable meteorological conditions rather than 
``permanent and enforceable reductions in emissions'' of a pollutant or 
pollutant precursors.
    Response: The requirement to determine that clean air is the result 
of ``permanent and enforceable reductions in emissions'' is a criterion 
for the redesignation of an area to attainment under section 
107(d)(3)(E) and not for a finding of attainment under section 
181(b)(1). We did not propose to redesignate the Phoenix area to 
attainment.
    That aside, we believe that the finding of attainment itself 
addresses in part the concern about unusually favorable meteorological 
conditions. We have long recognized that meteorological conditions have 
a profound effect on ambient ozone concentrations. In setting the 
current 1-hour ozone standard in 1979, we changed the form of the 
standard, i.e., the criterion for determining attainment, from a 
deterministic form ``no more than once per year'' to a statistical form 
``when the expected number of days per year is less than or equal to 
one'' over a three-year period in order to properly account for the 
random nature of meteorological variations. The three-year period for 
averaging the expected number of exceedances was a reasoned balance 
between evening out meteorological effects and properly addressing real 
changes in emission levels. See the proposal and final actions 
promulgating the current 1-hour ozone standard at 43 FR 26962, 26968 
(June 22, 1978) and 44 FR 8202, 8218 (February 8, 1979).
    Moreover, the Phoenix area did not just barely meet the 1-hour 
ozone standard; it met the standard with room to spare. An area can 
record up to three days of air quality above the 1-hour ozone standard 
at any one monitor during a successive three-year period and still be 
considered attaining the standard. The Phoenix area fared much better 
than that, recording not a single day over the standard at any of its 
20 ozone monitors from 1997 through 1999. This record of clean air has 
carried into a fourth year. During the 2000 ozone season, the Phoenix 
area again did not record a single exceedance of the 1-hour ozone 
standard. See TSD at pp. 12-13. The area's design value, which is a 
measure of the severity of an area's ozone problem and is used to 
establish an area's initial classification, was 10 percent below the 
standard and a 16 percent drop from its design value for the preceding 
three-year (1994-1996) period.
    Furthermore, under EPA's redesignation guidance, there are two 
aspects to ``permanent and enforceable emission reductions.'' One is 
unusually favorable meteorology. The other is a temporary reduction in 
emission rates caused by shutdowns or reduced production due to 
temporary adverse economic conditions. See Memorandum, John Calcagni, 
Director, Air Quality Management Division (OAQPS), to Regional Air 
Directors, ``Procedures for Processing Requests to Redesignate Areas to 
Attainment,'' September 4, 1992, page 4. ``Adverse'' is not a term that 
could be applied to the economy of the greater Phoenix area over the 
last several years.
    In addition, we believe that the Phoenix area's record of clean air 
can be tied directly to permanent and enforceable emission reductions. 
The area is subject to a comprehensive ozone control strategy that 
includes national on-road motor vehicle standards, national non-road 
engine standards, national consumer product standards, Arizona's 
cleaner burning gasoline and vehicle emission inspection programs, and 
Maricopa County's industrial and commercial source rules. This strategy 
leaves few, if any, sources of VOC unregulated.
    Comment: ACLPI claims that EPA implicitly recognizes the 
possibility that the Phoenix area may violate the ozone NAAQS again. 
However, ACLPI states

[[Page 29235]]

that EPA then dismisses this possibility with the observation that it 
can require a SIP revision containing the missing elements if a 
violation occurs. ACLPI asserts that this approach will not help 
``those who needlessly suffer from unhealthy ozone levels that could 
have been avoided through compliance with the Act, noting that SIP 
revisions take months, sometimes years to complete.'' Finally, ACLPI 
contends that the ``more responsible policy is the one adopted by 
Congress which requires states to adhere to the Act's nonattainment 
planning requirements until they can demonstrate that redesignation of 
an area to attainment is warranted.''
    Response: The Seitz memo explicitly addresses the consequences of 
future violations of the 1-hour ozone standard. In the proposal for 
today's action, we merely described this policy as it would apply to 
the Phoenix area if the area were to violate the standard in the 
future. While this could be interpreted as acknowledging the 
possibility of future violations in the Phoenix area, it is not an 
acknowledgment of the probability of future violations.
    Furthermore, ozone will continue to be controlled in the Phoenix 
area in spite of this finding of attainment and the concurrent finding 
that certain CAA planning requirements no longer apply. As noted above, 
the State of Arizona and the Maricopa County Environmental Services 
Department, the local air pollution control agency, have adopted a 
comprehensive ozone control program for the Phoenix area. All these 
existing ozone control measures remain in place and these agencies 
remain obligated to fully implement and enforce them. Most are SIP-
approved or have been submitted for SIP approval. See appendix A of the 
``Serious Area Ozone State Implementation Plan for Maricopa County,'' 
submitted to EPA on December 14, 2000.
    In addition, the area will be the beneficiary of substantial new 
controls over the next few years. The two largest source categories of 
VOC emissions in the Phoenix area, in order, are gasoline-powered on-
road vehicles and gasoline-powered non-road engines. Several already 
adopted state and federal measures will be implemented over the next 
few years that will further reduce emissions from these categories. 
These measures include Arizona's implementation of the final, more 
stringent cut points for the Vehicle Emissions Inspection Program (VEI) 
and expansion of that program and the State's Cleaner Burning Gas (CBG) 
program into growing areas that surround the core Phoenix urbanized 
area. Id.
    Nationally, we have issued our tier 2 on-road motor vehicle 
standards covering both light duty cars and light duty trucks including 
sports utility vehicles. 65 FR 6697 (February 10, 2000). For non-road 
engines, we have established emission limitations for new non-road 
engines of all types. Many of these standards have tiered emission 
standards that become increasingly stringent in future years. See, for 
example, the tier 2 standards for small gasoline-powered nonroad 
engines at 65 FR 24267 (April 25, 2000).
    The Phoenix area will also benefit from national standards on the 
VOC content of consumer products required by CAA section 183(e). These 
standards control the VOC content of such consumer products as paints, 
hair sprays, household pesticides, and miscellaneous other consumer 
goods. 63 FR 48819 (September 11, 1998). We also continue to issue 
maximum available control technology (MACT) standards under CAA section 
112(d) to reduce hazardous air pollutants from stationary sources, most 
of which target VOC emissions. 40 CFR part 61.
    Finally, we note that under ACLPI's construction of the CAA, the 
Phoenix area would face the prospect of mandatory sanctions under CAA 
section 179(a) for failing to submit the 9 percent reasonable further 
progress, attainment demonstration, and contingency measures plans. For 
example, under ACLPI's interpretation of CAA section 182(c)(2)(B), 
Arizona would have to adopt controls for the Phoenix area that would 
reduce VOC emissions by 9 percent despite the fact that the area has 
attained and continues to attain the 1-hour ozone NAAQS. These measures 
would impose additional costs upon the area's residents although they 
are unnecessary for clean air. Thus, ACLPI's interpretation would not 
only require measures that are not necessary for attaining the 
standard, it could also lead to sanctions for failing to submit these 
measures. EPA's contrary interpretation would not require unnecessary 
emission reductions or sanctions for a state's failure to undertake 
such reductions.

C. Effects of the Determination on the Phoenix Area and of a Future 
Violation on This Determination

    During the 2000 ozone season, the Phoenix area continued its record 
of clean air, experiencing no exceedances of the 1-hour ozone standard. 
In short, the area remains in attainment of the 1-hour ozone standard 
as of the date of this final action. Based on our finding that the 
Phoenix metropolitan area is attaining the 1-hour ozone standard, we 
are finding that the State of Arizona is no longer required to submit a 
9 percent ROP plan, an attainment demonstration, or contingency 
measures for the area.
    The lack of a requirement to submit these SIP revisions will exist 
only as long as the Phoenix metropolitan area continues to attain the 
1-hour ozone standard. If we subsequently determine that the Phoenix 
area has violated the 1-hour ozone standard (prior to a redesignation 
to attainment), the basis for the determination that the area need not 
make these SIP revisions would no longer exist. Thus, a determination 
that an area need not submit these SIP revisions amounts to no more 
than a suspension of the requirements for so long as the area continues 
to attain the standard.
    Should the Phoenix metropolitan area begin to violate the 1-hour 
standard, we will notify Arizona that we have determined that the area 
is no longer attaining the 1-hour standard. We also will provide notice 
to the public in the Federal Register. Once we determine that the area 
is no longer attaining the 1-hour ozone standard then Arizona will be 
required to address the pertinent SIP requirements within a reasonable 
amount of time. We will set the deadline for the State to submit the 
required SIP revisions at the time we make a nonattainment finding.
    Arizona must continue to operate an appropriate air quality 
monitoring network, in accordance with 40 CFR part 58, to verify the 
attainment status of the area. The air quality data relied upon to 
determine that the area is attaining the ozone standard must be 
consistent with 40 CFR part 58 requirements and other relevant EPA 
guidance.

D. Effect of the Determination on Transportation Conformity

    CAA section 176(c) requires that federally funded or approved 
transportation actions in nonattainment areas ``conform'' to the area's 
air quality plans. Conformity ensures that federal transportation 
actions do not worsen an area's air quality or interfere with its 
meeting the air quality standards.
    One of the primary tests for conformity is to show that 
transportation plans and improvement programs will not cause motor 
vehicle emissions to rise above the levels needed for progress toward 
and attainment with the air quality standards. These motor vehicle 
emissions levels are set in an area's attainment, maintenance, and/or 
RFP demonstration and are known as the ``transportation conformity 
budget.''
    EPA set the current ozone conformity budget for the Phoenix 
metropolitan

[[Page 29236]]

area in our revised federal 15 percent ROP plan. 64 FR 36243 (July 6, 
1999). Today's finding (i.e., that the Phoenix area has attained the 1-
hour ozone standard and that the State no longer needs to submit 
attainment and ROP/RFP demonstrations) will not affect the continued 
applicability of the existing budget. This budget will remain 
applicable until Arizona submits a maintenance demonstration with a 
revised transportation conformity budget (or until Arizona submits 
attainment and RFP/ROP demonstrations with a revised budget should the 
Phoenix area again violate the 1-hour ozone standard) and we find the 
new budget adequate.

IV. Administrative Requirements

    This action merely finds that the Phoenix area has attained a 
previously established national ambient air quality standard based on 
an objective review of measured air quality data. It also determines 
that certain Clean Air Act requirements no longer apply to the Phoenix 
area because of the attainment finding. It will not impose any new 
regulations, mandates, or additional enforceable duties on any public, 
nongovernmental or private entity. 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.). Under Executive Order 12866, Regulatory 
Planning and Review (58 FR 51735, October 4, 1993), this rule is not a 
``significant regulatory action'' and therefore is not subject to 
review by the Office of Management and Budget. It does not contain any 
unfunded mandate or significantly or uniquely affects small 
governments, as described in the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4). This rule also does 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 rule will not have substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government, as specified in Executive Order 13132, Federalism (64 FR 
43255, August 10, 1999) because it 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.
    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 
because it would be inconsistent with applicable law for EPA, when 
determining the attainment status of an area, to use voluntary 
consensus standards in place of promulgated air quality standards and 
monitoring procedures that otherwise satisfy the provisions of the 
Clean Air Act. As required by section 3 of Executive Order 12988, Civil 
Justice Reform (61 FR 4729, February 7, 1996), in issuing this rule, 
EPA has taken the necessary steps to eliminate drafting errors and 
ambiguity, minimize potential litigation, and provide a clear legal 
standard for affected conduct. EPA has complied with Executive Order 
12630, Governmental Actions and Interference with Constitutionally 
Protected Property Rights (53 FR 8859, March 15, 1988) by examining the 
takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings'' issued under the executive order. 
This rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the 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 July 30, 2001.
    Filing a petition for reconsideration by the Administrator of this 
final rule does not affect the finality of this rule for the purposes 
of judicial review nor does it extend the time within which a petition 
for judicial review may be filed, and shall not postpone the 
effectiveness of such rule or action. This action may not be challenged 
later in proceedings to enforce its requirements. (See section 
307(b)(2).)

List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control, Intergovernmental 
relations, Ozone, Reporting and recordkeeping requirements.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: May 14, 2001.
Laura Yoshii,
Acting Regional Administrator, Region 9.
[FR Doc. 01-13512 Filed 5-29-01; 8:45 am]
BILLING CODE 6560-50-P


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