18010 Federal Register / Vol. 60, No. 68 / Monday, April 10, 1995 / Rules and Regulations

numbers issued under the Paperwork

Reduction Act (PRA) for Control of Air

Pollution; Determination of Significance

for Nonroad Sources and Emission

Standards for New Nonroad

Compression-Ignition Engines At or

Above 37 Kilowatts.

EFFECTIVE DATE: This final rule is

effective May 10, 1995.

FOR FURTHER INFORMATION CONTACT:

Linda Hormes, Certification Division,

U.S. Environmental Protection Agency,

2565 Plymouth Road, Ann Arbor,

Michigan 48105, telephone (313)668–

4502.

SUPPLEMENTARY INFORMATION:

A. Legal Authority to Amend Part 9

EPA is today amending the table of

currently approved information

collection request (ICR) control numbers

issued by OMB for various regulations.

Today’s amendment updates the table to

accurately display those information

requirements promulgated under the

final rulemaking which appeared in the

Federal Register on June 17, 1994 (59

FR 31306). This display of the OMB

control number and its subsequent

codification in the Code of Federal

Regulations satisfies the requirements of

the Paperwork Reduction Act (44 U.S.C.

3501 et seq.) and OMB’s implementing

regulations at 5 CFR 1320.

The ICR was previously subject to

public notice and comment prior to

OMB approval. As a result, EPA finds

that there is ‘‘good cause’’ under section

553(b)(B) of the Administrative

Procedure Act (5 U.S.C. 553(b)(B)) to

amend this table without prior notice

and comment. Due to the technical

nature of the table, further notice and

comment would be unnecessary. For the

same reasons, EPA also finds that there

is good cause under 5 U.S.C. 553(d)(3).

B. Burden Statement

The information collection

requirements in this rule have been

approved by the Office of Management

and Budget (OMB) under the Paperwork

Reduction Act, 44 U.S.C. 3501 et seq.

and have been assigned control number

2060–0287.

This collection of information has an

estimated reporting burden averaging

5,800 hours for a typical engine

manufacturer. However, the hours spent

annually on information collection

activities by a given manufacturer

depends upon manufacturer-specific

variables, such as the number of engine

families, production changes, emissions

defects, and so forth. This estimate

includes time for reviewing

instructions, searching existing data

sources, gathering and maintaining the

data needed, and completing and

reviewing the collection of information.

Send comments regarding the burden

estimate or any other aspect of this

collection of information, including

suggestions for reducing this burden to

Chief, Information Policy Branch; EPA;

401 M St. SW (Mail Code 2136);

Washington, DC 20460; and to the

Office of Information and Regulatory

Affairs; Office of Management and

Budget; Washington, DC 20503, marked

‘‘Attention: Desk Officer for EPA’’.

List of Subjects in 40 CFR Part 9

Reporting and recordkeeping

requirements.

Dated: April 3, 1995.

Mary D. Nichols,

Assistant Administrator for Air and

Radiation.

For the reasons set out in the

preamble, 40 CFR part 9 is amended as

follows:

PART 9—[AMENDED]

1. The authority citation for part 9

continues to read as follows:

Authority: 7 U.S.C. 135 et seq., 136–136y;

15 U.S.C. 2001, 2003, 2005, 2006, 2601–2671;

21 U.S.C. 331j, 346a, 348; U.S.C. 9701; 33

U.S.C. 1251 et seq., 1311, 1313d, 1314, 1321,

1326, 1330, 1344, 1345 (d) and (e), 1361; E.O.

11735, 38 FR 21243, 3 CFR, 1971–1975

Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246,

300f, 300g, 300g-1, 300g-3, 300g-4, 300g-5,

300g-6, 300j-1, 300j-2, 300j-3, 300j-4, 300j-9,

1857 et seq., 6901–6992k, 7401–76711, 7542,

9601–9657, 11023, 11048.

2. Section 9.1 is amended by adding

the new entries to the table to read as

follows:

§ 9.1 OMB approvals under the Paperwork

Reduction Act.

* * * * *

40 CFR citation OMB control No.

* * * * *

Control of Emissions From New

and In-Use Nonroad Engines

* * * * *

89.114–96 through 89.120–96 . 2060–0287

89.122–96 through 89.127–96 . 2060–0287

89.129–96 ................................. 2060–0287

89.203–96 through 89.207–96 . 2060–0287

89.209–96 through 89.211–96 . 2060–0287

89.304–96 through 89.331–96 . 2060–0287

89.404–96 through 89.424–96 . 2060–0287

* * * * *

[FR Doc. 95–8741 Filed 4–7–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 52

[AZ31–1–6531; FRL–5173–8]

Approval and Promulgation of

Implementation Plans; ArizonaPhoenix Nonattainment Area; PM10

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is finalizing the approval

of a revision to the Arizona State

Implementation Plan (SIP) proposed in

the Federal Register on July 28, 1994.

The revision was submitted to EPA by

Arizona to fulfill the State’s obligation

to revise its SIP to meet the PM10

(particulate matter less than or equal to

10 microns in aerodynamic diameter)

‘‘moderate’’ area planning requirements

of the Clean Air Act (CAA or Act). This

approval action will incorporate this

revision into the federally approved SIP.

The intended effect of approving this

revision is to regulate emissions of PM10

in the Phoenix Planning Area (PPA).

The revised SIP controls PM10 emissions

from sources including, but not limited

to, paved roads, construction and

demolition activities, unpaved parking

areas and roads, nonmetallic mineral

mining and processing facilities, open

burning activities, uncovered haul

trucks and farming operations. Thus,

EPA is finalizing the approval of this

revision into the Arizona SIP under

provisions of the CAA regarding EPA

action on SIP submittals, SIPs for

national primary and secondary ambient

air quality standards and plan

requirements for nonattainment areas.

EFFECTIVE DATE: This action is effective

on May 10, 1995.

ADDRESSES: Copies of the SIP revision

are available for public inspection at

EPA’s Region IX office during normal

business hours. Copies of the submitted

SIP revisions are available for

inspection at the following locations:

Plans Development Section (A–2–2), Air

and Toxics Division, U.S.

Environmental Protection Agency,

Region IX, 75 Hawthorne Street, San

Francisco, CA 94105.

Environmental Protection Agency, Air

Docket (6102), 401 ‘‘M’’ Street SW.,

Washington, DC 20460.

Arizona Department of Environmental

Quality, 3033 North Central Avenue,

Phoenix, AZ 85012.

FOR FURTHER INFORMATION CONTACT:

Robert Pallarino, (415) 744–1212.

SUPPLEMENTARY INFORMATION:
Federal Register / Vol. 60, No. 68 / Monday, April 10, 1995 / Rules and Regulations 18011

1There are additional submittals associated with

moderate PM10 nonattainment plans, such as a

permit program for the construction of new and

modified major stationary sources and contingency

measures. See sections 189(a) and 172(c)(9). These

submittals were required to be submitted in 1992

and 1993, respectively, and are not the subject of

today’s action which addresses only those plan

provisions required to be submitted on November

15, 1991.

2As discussed in the Federal Register notice

proposing approval of this plan, the PM10 plan for

the PPA does not demonstrate attainment by

December 31, 1994, but rather includes the

alternative demonstration that attainment by that

date is impracticable. Therefore, section 189(c) does

not apply. However, as discussed further in this

notice, areas demonstrating that attainment is

impracticable are required by section 172(c)(2) to

demonstrate RFP. See Section IV. of this Notice,

‘‘Reasonable Further Progress’’.

I. Background

A. CAA Requirements

On the date of enactment of the 1990

Clean Air Act Amendments, PM10 areas,

including the PPA, meeting the

conditions of section 107(d) of the Act

were designated nonattainment by

operation of law. Once an area is

designated nonattainment, section 188

of the Act outlines the process for

classification of the area and establishes

the area’s attainment date. In

accordance with section 188(a), at the

time of designation, all PM10

nonattainment areas were initially

classified as ‘‘moderate’’ by operation of

law. See 40 CFR 81.303 (1993). A

moderate area may subsequently be

reclassified as ‘‘serious’’ if at any time

EPA determines that the area cannot

practicably attain the PM10 NAAQS by

the applicable attainment date for

moderate areas, December 31, 1994.

Moreover, a moderate area is

reclassified by operation of law if the

area is not in attainment after the

applicable attainment date, which is

December 31, 1994 for the PPA. EPA is

required to make a determination and

provide public notice regarding whether

the area has attained within six months

following the attainment date. See

Section 188(b), 42 U.S.C. 7513(a).

The air quality planning requirements

for moderate PM10 nonattainment areas

are set out in subparts 1 and 4 of title

I of the Act. EPA has issued guidance in

its General Preamble describing EPA’s

views on how the Agency will review

SIPs and SIP revisions submitted under

title I of the Act, including those

containing moderate PM10

nonattainment area SIP provisions. 57

FR 13498 (April 16, 1992); 57 FR 18070

(April 28, 1992). The General Preamble

provides a detailed discussion of the

EPA’s interpretation of the Title I

requirements.

States with initial moderate PM10

nonattainment areas were required to

submit, among other things, the

following provisions by November 15,

1991: 1

1. Provisions to assure that reasonably

available control measures (RACM)

(including such reductions in emissions

from existing sources in the area as may

be obtained through the adoption, at a

minimum, of reasonably available

control technology (RACT)) shall be

implemented no later than December

10, 1993;

2. Either a demonstration (including

air quality modeling) that the plan will

provide for attainment as expeditiously

as practicable but no later than

December 31, 1994, or a demonstration

that attainment by that date is

impracticable;

3. Pursuant to section 189(c)(1), for

plan revisions demonstrating

attainment, quantitative milestones

which are to be achieved every 3 years

and which demonstrate reasonable

further progress (RFP) toward

attainment by December 31, 1994; 2 and

4. Provisions to assure that the control

requirements applicable to major

stationary sources of PM10 also apply to

major stationary sources of PM10

precursors, except where the

Administrator determines that such

sources do not contribute significantly

to PM10 levels which exceed the

NAAQS in the area.

In today’s rulemaking action, EPA is

taking final action to approve Arizona’s

moderate PM10 SIP revision for the PPA,

which includes the State’s

demonstration that attainment of the

PM10 NAAQS by December 31, 1994, is

impracticable for the PPA. EPA is also

announcing its intention to reclassify

the PPA as a serious nonattainment area

pursuant to section 188(b)(2). However,

EPA is not making a finding as to

whether the PPA has attained the PM10

NAAQS in today’s action, but, as

discussed elsewhere in this Notice, will

be doing so in a separate action in the

coming months. See Section III. Once

EPA determines the PPA has not

attained the PM10 NAAQS, the area will

be reclassified to serious by operation of

law.

B. Proposed SIP Approval

EPA proposed approval of the

moderate area PM10 SIP revision for the

PPA on July 28, 1994 (59 FR 38402).

EPA’s proposed approval was based on

a preliminary finding that the State’s

submittal meets the requirements of the

Act, including: (1) an inventory of all

sources of PM10 in the nonattainment

area; (2) provisions to implement RACM

by December 10, 1993; and (3) a

demonstration that attainment of the

PM10 NAAQS by the moderate area

attainment date, December 31, 1994, is

impracticable.

EPA proposed simultaneously to

approve Maricopa County Rule 310—

Open Fugitive Dust Sources, 311—

Particulate Matter from Process

Industries, 314—Open Outdoor Fires,

and 316—Nonmetallic Mineral Mining

and Processing, as new rules the State

adopted as RACM for the PPA. EPA also

proposed to reclassify the PPA as a

serious area and invited public

comment on whether final action

should occur under section 188(b)(1) or

188(b)(2) of the CAA.

II. Today’s Action

In today’s document, EPA is taking

final action to approve the moderate

area PM10 state implementation plan

revision for the PPA. The SIP revision

for the PPA was submitted by the State

of Arizona on August 11, 1993 and

March 3, 1994. Maricopa County Rule

314 was adopted by the State and

submitted to EPA on January 4, 1990.

The State also submitted a revised

version of Maricopa County Rule 310—

Open Fugitive Dust Sources on

December 19, 1994. The County revised

this rule to delete provision 221.9 of the

Rule as requested by EPA. See 59 FR

38407, July 28, 1994. Specifically, EPA

is approving and incorporating by

reference into the SIP the MAG 1991

Particulate Plan for PM10 for the

Maricopa County Area and 1993

Revisions, the Revised Chapter 9 and

Maricopa County Rule 311—Particulate

Matter from Process Industries and Rule

316—Nonmetallic Mineral Mining and

Processing, Maricopa County Rule

314—Open Outdoor Fires and Maricopa

County Rule 310—Open Fugitive Dust

Sources. EPA is also stating its

intention, but is not taking final action

at this time, to reclassify the PPA under

section 188(b)(2) of the Act. EPA is not

taking final action on its proposal to

reclassify the PPA under section

188(b)(1) of the Act.

III. Reclassification

As stated above, EPA is not

reclassifying the PPA in this document.

However, EPA intends to propose

reclassification of the PPA to a serious

area pursuant to section 188(b)(2) of the

Act.

The Act provides two mechanisms for

reclassifying moderate PM10

nonattainment areas as serious PM10

nonattainment areas. Section 188(b)(1)

gives EPA the discretion to reclassify

any area which EPA determines cannot

practicably attain the NAAQS by the

applicable attainment date at any time

before the attainment date. In the case
18012 Federal Register / Vol. 60, No. 68 / Monday, April 10, 1995 / Rules and Regulations

of the PPA, the CAA-mandated

attainment date was December 31, 1994.

The second mechanism for

reclassification, provided by section

188(b)(2), is to make a finding after the

attainment date has passed that the area

has not attained the NAAQS.

The difference between these two

mechanisms involves the timing of

submittals of certain plan provisions.

Under section 188(b)(1), if EPA were to

take final action on its proposal to

reclassify the PPA as serious (see 59 FR

38406, July 28, 1994) the State would be

required to submit its serious area SIP

revision in two parts. Within 18 months

of the final action reclassifying the PPA,

the State would be required to submit

provisions to assure the implementation

of best available control measures

(BACM) no later than four years after

the date of reclassification. The State’s

demonstration that the plan provides for

attainment of the PM10 NAAQS by the

serious area attainment date (December

31, 2001) would have to be submitted

within four years of the date of

reclassification.

Under section 188(b)(2) of the Act, if

EPA makes a determination after the

moderate area attainment date has

passed that the PPA has not attained the

NAAQS, then within 18 months after

the date of reclassification, the State is

required to submit provisions to assure

the implementation of BACM no later

than four years after the date of

reclassification and a demonstration

that the plan will provide for attainment

of the PM10 NAAQS by December 31,

2001. The practical difference in these

two approaches is the timing of the

submittal of the attainment

demonstration and how it affects the

BACM determination.

Under section 188(b)(1), the State

would initially develop its BACM

determination in the absence of an

attainment demonstration with the

potential result that the chosen

measures would not ultimately attain

the PM10 standards by the applicable

attainment date. Such a result, however,

would not be revealed until several

years later, when the air quality

modeling analysis is conducted for the

attainment demonstration. If, at that

point, additional measures were found

to be necessary for the area to attain the

PM10 NAAQS, new measures would

have to be developed, adopted and

submitted to EPA. In contrast, under

section 188(b)(2), all the required

elements of the serious area plan

including the attainment demonstration

must be submitted to EPA within 18

months of reclassification. Thus, under

section 188(b)(2), EPA believes the

process of attaining the PM10 standards

is expedited.

In its notice of proposed rulemaking,

EPA expressed its intent to reclassify

the PPA under section 188(b)(2) of the

Act. EPA believed that since the State

originally concluded that the PPA could

not practicably attain the PM10 NAAQS

by December 31, 1994 when it

developed its November 1991 plan

submission and that, despite procedural

delays and plan updates culminating in

the 1993 and 1994 SIP submittals, this

conclusion has not changed, the State

has been on notice for more than three

years that reclassification was likely.

Under these circumstances, a delay of

four years for the submission of a

serious area attainment demonstration is

unwarranted. Rather, the Agency

believed that it is more appropriate to

accelerate, to the maximum extent

possible, the State’s submission of a

complete serious area plan to attain the

PM10 NAAQS.

Notwithstanding the reasons above,

EPA stated in its proposed rulemaking

that there could be valid reasons

advanced for reclassifying the PPA

under section 188(b)(1). Therefore, EPA

proposed to reclassify the PPA using its

discretionary authority under section

188(b)(1). EPA stated its intent to

finalize the reclassification under

section 188(b)(1) only if it received

compelling arguments from

commenters. EPA received comments

on the issue of reclassification from the

Arizona Department of Environmental

Quality (ADEQ), Maricopa Association

of Governments (MAG), Maricopa

County Environmental Services

Department (MCESD), Arizona

Department of Transportation (ADOT),

and Arizona Center for Law in the

Public Interest (ACLPI). The comments

from ADEQ, MAG, MCESD, and ADOT

all encouraged EPA to reclassify the

PPA immediately under section

188(b)(1). These commenters were

concerned that the State’s ability to

complete the required technical

elements of the serious area SIP

revision, particularly an improved and

updated emission inventory and an

accurate air quality analysis including

air quality modeling, would require the

longer submittal time for a

demonstration of attainment afforded

under section 188(b)(1) of the Act. Many

of the commenters also argued that

taking final action to reclassify the PPA

before the moderate area attainment

date would expedite the air quality

benefits which would be provided by

the serious area plan since the BACM

implementation date would occur

sooner.

EPA has not been persuaded by these

comments to reclassify the PPA under

section 188(b)(1). EPA believes that the

State has been aware for a number of

years that, even taking into

consideration the implementation

efforts it has now undertaken in

complying with the PM10 Moderate area

planning requirements, that it was

impracticable to demonstrate attainment

of the PM10 NAAQS by December 31,

1994. Thus, EPA does not believe the

State has provided any valid basis to

delay submittal of an attainment

demonstration by four years.

Furthermore, the schedule for

developing and submitting the technical

elements of the serious area SIP revision

is no different than the schedule for

submitting a complete SIP revision for

areas designated nonattainment after the

passage of the 1990 CAA amendments.

Under section 189(a)(2)(B) these areas

are required to submit SIP revisions

within 18 months after the date they are

redesignated. The requirements for

developing the technical elements of a

serious area SIP are not substantially

different from those for a moderate area.

Regarding the BACM implementation

date, the Act simply states that BACM

is to be implemented no later than four

years after reclassification to serious.

Under the overall scheme of the Act, the

State is certainly permitted and, in fact,

encouraged to implement BACM on as

expeditious a schedule as practicable

before the four-year deadline.

EPA also notes that ACLPI opposed

reclassification of the PPA under

188(b)(1) because it would have the

effect of rewarding the State’s delay in

preparing its PM10 SIP by giving the

State four years instead of 18 months to

submit its serious area plan revision.

However, EPA is not taking final action

to reclassify the PPA under section

188(b)(1). For the reasons stated above,

EPA believes that reclassification under

section 188(b)(2) is the appropriate

action to take in this case. EPA will be

reviewing the PM10 monitoring data for

the PPA and will make an official

determination of whether the PPA has

attained the PM10 NAAQS by June 30,

1995 or sooner. To demonstrate

attainment of the PM10 NAAQS by the

applicable attainment date (December

31, 1994), the PPA would need to show

that it has had no violations of the PM10

standards, 24 hour and annual, in the

past three years (1992, 1993, and 1994).

40 CFR part 50, appendix K. The State

recorded violations of both standards in

1992 and 1993.

IV. Reasonable Further Progress

Section 172(c)(2) of the Act states that

nonattainment area plans shall require
Federal Register / Vol. 60, No. 68 / Monday, April 10, 1995 / Rules and Regulations 18013

reasonable further progress (RFP). RFP

is defined by section 171(1) 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.’’ However, there is a gap in the

statute in that the PM10 specific

provisions of the Act do not clearly

specify when and in what manner states

containing PM10 nonattainment areas

that ultimately demonstrate it is

impracticable to attain the NAAQS by

the Moderate area deadline, such as the

PPA, which is the subject of this

document, must demonstrate they have

met the RFP requirement. While section

189(c)(1) of the Act requires PM10 SIP

revisions to contain quantitative

milestones which are to be achieved

every 3 years until the area is

redesignated attainment and which

must also demonstrate reasonable

further progress, that section, by its

explicit terms, only applies to areas

with ‘‘plan revisions demonstrating

attainment.’’ However, while it appears

that the Act does not provide

specifically for a quantitative milestone

reporting requirement showing RFP is

met for areas that demonstrate it is

impracticable to attain the PM10 NAAQS

by the applicable deadline, EPA

nonetheless believes, based on the

general nonattainment area provisions

regarding RFP as well as the overall

purpose and structure of Title I and Part

D of the Act, that such areas are not

thereby relieved of the obligation to

periodically demonstrate that they are

meeting the requirement for RFP.

Consequently, for purposes of

implementing the RFP requirement for

such areas, EPA believes that where the

language in section 171(1) indicates that

the purpose of the RFP reductions is to

ensure ‘‘attainment of the applicable

[NAAQS] by the applicable [attainment]

date,’’ the applicable attainment date for

areas demonstrating that it is

impracticable to attain would be the

date set by section 188(c) when the area

is reclassified as serious. Similarly,

since the Act does not explicitly provide

for states with PM10 nonattainment

areas which demonstrate it is

impracticable to attain to submit

periodic reports demonstrating that RFP

is being met, such as is required under

section 189(c)(1) for PM10 areas which

demonstrate attainment, EPA believes it

may invoke the discretionary authority

provided the Agency under section

110(p) of the Act to require the

submittal of such reports. That section

states that ‘‘any State shall submit’’ such

reports as EPA may require, and on such

schedules as EPA may prescribe,

providing information on specific data

but also including ‘‘any other

information [EPA] may deem necessary

to assess the development effectiveness,

need for revision, or implementation of

any plan or plan revision required

under this Act.’’ The initial RFP report

for such areas is to be included in the

SIP submittal containing the area’s

demonstration of impracticability, and

should show that even though the

emissions reductions achieved through

the implementation of all RACM may

not be enough to enable the area to

demonstrate attainment by the Moderate

area deadline of December 31, 1994,

such implementation has resulted in

‘‘incremental reductions’’ in emissions

of PM10 as the RFP definition in section

171(1) specifies. Once the area has been

reclassified, subsequent RFP report

submittals will be timed to reflect

emissions reductions which will be

achieved due to the implementation of

BACM. In summary then, EPA’s policy

is that the requirement to submit

periodic reports demonstrating that RFP

(as defined in section 171(1)) is being

met applies equally to PM10

nonattainment areas that demonstrate

attainment by the applicable deadline

and to such areas that demonstrate it is

impracticable to attain by such date; for

the former areas the requirement applies

pursuant to sections 189(c)(1) and

172(c)(2), for the latter areas the

requirement applies pursuant to

sections 172(c)(2) and 110(p). As

described in greater detail elsewhere in

this document, the Phoenix Planning

Area, has provided information along

with its impracticability demonstration,

which proves to EPA’s satisfaction that

it has met the requirement to

demonstrate RFP. Finally, the

discussion in this document regarding

the demonstration of RFP in PM10

nonattainment areas which demonstrate

that attainment by the applicable

attainment date is impracticable

represents EPA’s preliminary guidance

on this issue, and is intended to clarify

the confusion created by omissions in

the Act and in prior EPA guidance. EPA

also intends, in the very near future, to

issue more comprehensive guidance on

this issue.

V. Response to Comments on Proposed

SIP Approval

Only ACLPI commented on EPA’s

proposed approval of the SIP revision;

other commenters addressed

reclassification. EPA appreciates the

comments submitted by ACLPI, which

are detailed and thoughtful. Some of the

comments raise difficult issues

regarding the State’s compliance with

complex planning requirements, which

often depend on coordination between a

number of local governments. ACLPI’s

most detailed comments concern the

State’s implementation of RACM,

particularly Transportation Control

Measures (TCMs). In this document,

EPA is providing its general response to

ACLPI’s comments on the

implementation of RACM, and EPA is

also providing very detailed responses

concerning individual TCMs and other

specific measures raised in ACLPI’s

comments in the Technical Support

Document (TSD) accompanying this

document.

A. Technical Issues

1. Monitoring

Comment: The PM10 SIP revision for

the PPA does not provide for the

establishment and operation of a PM10

monitoring network which meets the

requirements of EPA guidelines and

regulations. According to a 1992 EPA

audit, the monitoring network for the

Phoenix area ‘‘fails to meet many of the

minimum CFR requirements’’.

Response: EPA disagrees with the

comment. The PM10 SIP revision

provides for establishing and operating

a PM10 monitoring network in the PPA

which meets the requirements of EPA

guidelines and regulations. 40 CFR part

58; ‘‘Guideline for the Implementation

of the Ambient Air Monitoring

Regulations 40 CFR Part 58.’’ The

relevant provisions of the PPA’s

monitoring network are in Appendix B,

Exhibit 14 of the SIP revision. Appendix

B, Exhibit 14 also discusses proposed

modifications to the network and the

method by which the Maricopa County

Environmental Services Department

(MCESD) will address episode

occurrences.

Since a 1992 Re-Evaluation of the

Maricopa County Air Pollution Control

Program that was conducted by EPA,

the MCESD has made and documented

progress to meet the requirements in 40

CFR parts 50 and 58. The MCESD was

required by the Agency to develop a

Corrective Action Plan (CAP) to address

deficiencies documented in the 1992

Re-Evaluation. The progress on the CAP

is being monitored by EPA, Region IX

Air Quality Section and Compliance

and Oversight Section, through review

and verification of progress reports by

MCESD and visits with the MCESD Air

Monitoring Program personnel. EPA has

also withheld federal grant money to

encourage the MCESD to address CAP

commitments and regulatory

requirements in a timely manner. There

have been improvements by MCESD,
18014 Federal Register / Vol. 60, No. 68 / Monday, April 10, 1995 / Rules and Regulations

including revising the Quality

Assurance Program Manual

(conditionally approved by Region IX

pending minor additions), revamping its

entire PM10 network with new

equipment including four continuous

PM10 samplers, quality assurance

training for air monitoring staff, and

others.

Comment: A 1992 audit by Dames and

Moore (DM) found that the monitoring

network did not have adequate numbers

of neighborhood scale and middle scale

monitors, as directed by EPA guidance.

Several homogenous subregions in the

area have no monitoring station or one

station. In addition, little or no

monitoring is conducted within 500

meters from several major sources. DM

also found that the total number of

monitoring stations is far below that

required by EPA guidance. Under EPA

spatial siting guidelines, there should be

approximately 94 monitoring stations in

the nonattainment area. Yet the SIP

shows only 9 permanent PM10 stations.

DM also found that the monitoring

program was inadequately staffed.

Response: EPA does not agree with

the DM audit’s comments on network

adequacy, particularly concerning the

necessary number of air monitoring sites

recommended by DM. EPA criteria, in

40 CFR part 58, requires the Maricopa

County network to consist of six (6) to

ten (10) National Air Monitoring

Stations (NAMS). The district is also

required to operate State and Local Air

Monitoring Stations (SLAMS). Part 58

does not contain a numerical

requirement for SLAMS. Maricopa

County’s network consists of six (6)

NAMS, two (2) SLAMS, and five (5)

Special Purpose Monitoring Stations

(SPMS), for a total of thirteen (13)

SLAMS (NAMS are defined as a subset

of SLAMS). The network’s only

deficiency is that it lacks a category (a)

NAMS site with a high concentration

monitoring objective. But this

deficiency is being corrected and a

special purpose monitor has been set up

at the proposed location for a Category

(a) site. An EPA protocol provides that

this sampler will be run for at least one

year. The data will then be evaluated to

determine if the site meets the

objectives and should be proposed as a

NAMS. However, even without a

category (a) site, the MCESD air

monitoring network is measuring PM10

values above the 24 hour standard.

Part 58 requirements for ambient air

monitoring networks intend the SLAMS

networks to be representative of the four

basic monitoring objectives stipulated in

part 58 over the air basin. See 40 CFR

part 58, appendix D. Annual network

reviews are requested of the districts

and evaluated by the EPA to insure it is

representative of the monitoring stations

and to insure optimum use of resources.

EPA, therefore, disagrees that 94

monitoring stations should be required

in the nonattainment area.

Comment: In a May 15, 1992 letter to

the State EPA stated that the SIP must

include provisions for follow-up

monitoring and annual network

reviews. The State was to insure that the

monitoring network in place as of

January 1, 1994, would be appropriate

to evaluate attainment. EPA also stated

that the SIP revision should include a

plan for establishing PM10 episode

monitoring stations. None of these

requirements have been met in the form

of enforceable, funded commitments by

the State or local governments.

Response: The State has addressed

these requirements in the PM10 SIP

revision for the PPA which is

enforceable now on the State level, and

which will be enforceable federally once

this final notice becomes effective.

Appendix B, Exhibit 14 contains

additional information on the County’s

air quality surveillance system.

Appendix B, Exhibit 15 contains the

County’s Rule 510—Air Quality

Standards—which provides for the

establishment of pollutant monitoring in

accordance with EPA guidance and

Federal regulations. Appendix B,

Exhibit 16 contains the County’s Rule

600 which addresses emergency

episodes. Appendix B, Exhibit 17

contains further information on the

State’s procedures for the prevention of

emergency episodes.

Comment: The technical support

document accompanying EPA’s

proposed rulemaking asserts that the

SIP provides for correction of the

monitoring deficiencies by January 1,

1994. We ask EPA to identify precisely

where the SIP shows a legally

enforceable commitment to this effect,

and where the SIP shows a commitment

of financial resources to complete the

job. Moreover, because the January 1,

1994 date has long since passed, the

correction of deficiencies should now be

complete. We ask EPA to indicate where

the State has documented actual

correction of the deficiencies, if this has

in fact occurred.

Response: As discussed in the

preceding response, Maricopa County

has made documented progress in

meeting all of the Federal air quality

monitoring requirements. The

appendices to the PM10 plan, cited

above, provide specific information on

the County’s progress in correcting

deficiencies with the monitoring

network.

2. Emission Inventory

Comment: The State’s emission

inventory is not accurate or current as

required by the CAA.

Response: EPA disagrees with this

comment and believes that the

emissions inventory is accurate to

within an acceptable degree of

uncertainty. The State followed EPArecommended emissions inventory

procedures in use at the time of

inventory preparation. A degree of

uncertainty is particularly associated

with PM10 inventories because PM10

emissions are especially time- and

place-specific. Emission factors from a

study in one area may differ for another

area. PM10 emissions also vary with

activity levels and there are many

activities, such as residential wood

burning, for which there has been little

accurate quantification. EPA recognizes

that there are some differences between

the emissions inventory fractions

estimated from usual inventory methods

and the source proportions determined

from Chemical Mass Balance (CMB)

modeling. However, EPA does not

consider these differences to invalidate

the inventory. The monitored results

used in the CMB analysis reflect

differences in distance, dispersion, and

deposition of the emissions from

various PM10 sources. A source’s

contribution at a particular monitor is

not expected to be in the same

proportion as its contribution to the

area’s total emissions. This explains the

inventory/CMB discrepancies.

Furthermore, accuracy of the

emissions inventory is not critical to

demonstrating impracticability of

attainment. This is because a

demonstration of impracticability may

be based on the CMB apportionment

results and not specifically on the

emissions inventory. The inventory total

is used only as a normalization scaling

factor. EPA may have reached a

different conclusion if, for example, the

State sought to rely on a dispersion

model, which requires a more accurate

emissions inventory, instead of the CMB

receptor model. However, based on the

selected modeling, EPA believes that the

inventory is sufficiently accurate to

comply with the requirements of the Act

and, more specifically, to serve as the

basis for the demonstration of

impracticability.

3. Modeling

Comment: The SIP does not meet the

requirements of the Act and EPA

guidance for an adequate modeling

analysis.

Response: EPA disagrees with this

comment. The State’s modeling
Federal Register / Vol. 60, No. 68 / Monday, April 10, 1995 / Rules and Regulations 18015

complies with EPA guidelines, which

allow for a receptor model such as CMB

even though a dispersion model is

recommended when possible. See

Memorandum from John Calcagni,

‘‘PM10 SIP Demonstrations Policy for

Initial Moderate Areas’’ (March 4, 1991).

EPA recognizes that the State

attempted to validate a dispersion

model but was unsuccessful, in large

part because of the degree of spatial and

temporal accuracy required in the

emissions inventory for use as input to

a dispersion model. EPA believes that

the State provided a reasonable level of

effort to develop its dispersion model.

Because it failed, however, the State is

justified (and provided its justification

in the SIP revision) in using a CMB

receptor model. EPA has determined

that the State’s modeling complies with

EPA guidelines.

EPA also anticipates the PPA will be

reclassified as a serious area.

Reclassification will provide additional

time for the State to improve its

modeling. When the State ultimately

seeks to make an attainment

demonstration, EPA will apply more

stringent criteria for the spatial and

temporal accuracy of the emissions

inventory, corroborating models, and

treatment of secondary particulates.

Nevertheless, EPA believes that the

modeling submitted by the State in this

PM10 SIP revision complies with the

requirements and guidance established

by EPA for a moderate area SIP revision

and demonstration of impracticability.

Comment: EPA’s proposed finding

that PM10 precursors do not contribute

significantly to PM10 levels that exceed

the NAAQS in the PPA was made

without any objective standard against

which to measure significance. EPA’s

proposed action on this issue is

arbitrary and capricious.

Response: EPA disagrees with this

comment. EPA recognizes that on

individual sampling days there were

detectable contributions of one PM10

precursor, secondary ammonium

nitrate. Yet the average overall

contribution of secondary ammonium

nitrate was less than five percent of the

total annual inventory. See 1989–1990

Phoenix PM10 Study, Volume II: Source

Apportionment, DRI, April 12, 1991, p.

S–2. This magnitude of contribution is

not significant for purposes of this

action, although EPA acknowledges that

such a contribution might warrant

further attention if the State were

attempting to submit an attainment

demonstration for the 24-hour NAAQS.

EPA believes that a contribution of less

than five percent secondary ammonium

nitrate is within the degree of

uncertainty and is near the ‘‘noise’’ level

for CMB results.

In general, because of the complexity

of the chemistry involved, there is no

EPA-recommended method and no

scientific consensus for dealing with

secondary particulates. A number of

PM10 areas have dealt with this problem

by assuming that secondary particulates

are roughly proportional (or scale) to

emissions of primary particulates. EPA

believes that in the absence of better

scientific or technical information,

including better EPA guidance, this

approach is reasonable. Consistent with

this approach, the PPA scaled down

their total PM10 emissions inventory to

exclude the contributions from PM10

precursors. Indeed, if the PPA had

included the contributions from PM10

precursors, this would have resulted in

the recording of proportionately higher

concentrations of PM10 in excess of the

NAAQS. Therefore, if the PPA had

explicitly accounted for the contribution

of PM10 precursors, the State’s

conclusion that attainment is

impracticable would be strengthened,

not weakened.

4. Mobile Source Budget

Comment: ACLPI states that in order

to determine conformity of

transportation plans, projects, and

programs with this SIP, a mobile source

emission budget must be identified.

Response: EPA does not agree that the

State was required to identify a mobile

source emission budget. The moderate

area SIP revision for the PPA

demonstrates that attainment of the

PM10 NAAQS is impracticable by

December 31, 1994. Mobile source

emission budgets are only required to be

identified in SIP revisions which

demonstrate attainment. The preamble

to EPA’s transportation conformity rule

states:

Some moderate PM10 nonattainment areas

may have submitted SIPs which demonstrate

that the area cannot attain the PM10 standard

by the applicable attainment date. These

areas have been or will be reclassified as

serious areas under section 188(b) of the

Clean Air Act. Such SIPs which do not

demonstrate attainment do not have budgets

and are not considered control strategy SIPs

for the purposes of transportation conformity.

58 FR 62196, November 24, 1993.

Thus, EPA’s transportation

conformity rule explicitly contemplated

and determined that PM10 areas

demonstrating impracticability, like the

PPA, would not have provided for and

would not be required to identify a

mobile source emission budget until an

approvable attainment demonstration is

submitted.

B. Demonstration of Impracticability

Comment: The State’s demonstration

of the impracticability of 1994

attainment is contrary to both the

language and purpose of the Act. The

plain thrust of sections 188 and 189, in

combination with section 172, is that

states should make every effort to attain

by 1994. Rather than searching for

combinations of control measures that

would produce timely attainment, the

state merely lists 13 control measures,

asserts that they are insufficient to attain

by 1994, and then ‘‘finds’’ that

impracticability has been demonstrated.

Response: EPA disagrees. As

discussed throughout this document,

including in relevant responses to

comments, EPA has determined that

Arizona has implemented all RACM,

and that the correct number of

implemented measures is 67. EPA has

also determined that the PPA has

complied with the requirement of

section 172(c)(2) that it demonstrate it is

meeting RFP, by showing a measurable

increment of PM10 reductions between

the baseline and the emissions

reductions achieved through

implementation of all RACM. EPA

believes, therefore, that Arizona’s SIP

submittal does not contain mere

assertions, but appropriate and

acceptable demonstrations that are

consistent, not only with the criteria

contained in EPA’s guidance, but with

the Act’s language and purpose as well.

Again, as discussed further elsewhere in

this Notice, EPA also believes that

Congress recognized that many areas

initially designated Moderate for PM10

would not be capable of developing SIP

revisions which demonstrated

attainment by the applicable attainment

date. This is evident by the fact that, for

PM10, the Act also allows States to

demonstrate earlier than the applicable

attainment deadline that

implementation of RACM will not

provide for attainment and, thus, that

attainment by the Moderate area

deadline is impracticable. Since this

provision is unique to PM10 (the Act

generally provides fixed attainment

dates for other pollutants which, if the

area fails to meet, subjects it to a

mandatory ‘‘bump-up’’), it seems clear

that the language and intent of the Act

are to first provide PM10 areas with an

opportunity to attain the NAAQS

through the implementation of

reasonable, but not necessarily

exhaustive, efforts (i.e. RACM), and then

to provide those areas that cannot

achieve the NAAQS by the applicable

attainment date with an alternative—to

demonstrate that attainment is

impracticable. However, such areas
18016 Federal Register / Vol. 60, No. 68 / Monday, April 10, 1995 / Rules and Regulations

must then go through a second planning

effort which will require the

implementation of more stringent

measures, i.e. BACM.

Comment: ACLPI commented that the

State’s demonstration of

impracticability is deficient because it

fails to address the 24 hour standard.

Response: EPA disagrees that the

impracticability of meeting both

standards must be demonstrated. The

PPA cannot be redesignated to

attainment for PM10 until the State can

demonstrate that the SIP provides for

attainment of both the annual and the

24-hour NAAQS. Conversely, if the SIP

demonstrates that even with the

implementation of RACM it cannot

attain any one of the standards (annual

or 24-hour) by December 31, 1994, then

it has demonstrated that PM10

attainment is impracticable. As an

additional matter, it should be noted

that the PPA is proportionately farther

above the 24-hour NAAQS than it is

above the annual NAAQS. Thus, given

that the impracticability of attaining the

annual NAAQS has been demonstrated,

EPA agrees with the State’s conclusion

that attaining the more difficult 24-hour

NAAQS would likely be shown to be

similarly impracticable.

Comment: ACLPI commented that

EPA should not evaluate practicability

from the present point in time: i.e.,

whether attainment by December 31,

1994 is now practicable. The issue is

whether timely attainment would have

been practicable had the state

implemented all RACM as expeditiously

as practicable, and no later than

December 10, 1993. ACLPI also states

that, based on the decision in Delaney

v. EPA, 898 F. 2d 687 (1990), the state

would be obligated to provide for

attainment as soon as possible if

achievable via implementation of RACM

as expeditiously as practicable.

Response: EPA is concluding in this

action that Arizona has met the Act’s

requirement to implement all RACM by

December 10, 1993. EPA is also

concluding that the State has

demonstrated that attainment of the

PM10 NAAQS by December 31, 1994, is

impracticable even with timely

implementation of all RACM. EPA

therefore believes that the detailed

explanations in this notice, including

those contained in other relevant

responses to comments, and in the

accompanying technical support

document should adequately address

the issue raised by this comment. EPA

further believes that the requirements

that are relevant to consider are those

contained in the CAA, as amended in

1990, and not statements taken from the

Delaney opinion, which was construing

requirements under the CAA as

amended in 1977. As stated previously

in this document, sections 172(c) and

189(a)(1)(C) when read together require

the implementation of all RACM as

expeditiously as practicable but no later

than December 10, 1993. Additionally,

section 189(a)(1)(B) requires either a

demonstration that the plan provides for

attainment by December 31, 1994 or a

demonstration that attainment by that

date is impracticable. Since EPA

believes both that the RACM

implementation requirement has been

met and that an acceptable

demonstration of impracticability has

been provided by the State, no further

response is required.

C. RACM

Comment: ACLPI commented

generally that the SIP, EPA Guidance

and public comments identified 161

potential measures as RACM, but that

the revised PM10 SIP rejected all but 13

of the measures without providing

adequate justification. Similarly, the

state adopted only one new

transportation control measure, while

failing to adopt, without explanation,

every other potentially available TCM.

Response: The general and detailed

comments by ACLPI concerning RACM

raise difficult issues concerning the

State planning requirements, and EPA

appreciates the time and thought that

ACLPI has contributed to this process.

However, ACLPI has misunderstood the

number of measures that the State

implemented or rejected as RACM. The

revised PM10 SIP did not reject all but

13 measures from the list of possible

RACM. As discussed below and in

substantial detail in the accompanying

TSD, the State has implemented all

possible RACM (in some cases, by

demonstrating that partial

implementation of a measure is all that

was reasonable to implement by

December 10, 1993) and has provided

EPA with a reasoned justification for the

rejection of the remaining measures as

not constituting RACM.

EPA disagrees with ACLPI regarding

its RACM interpretation as it relates to

transportation control measures (TCMs).

In its comments regarding whether the

State should have considered various

proposed TCMs to be reasonably

available, ACLPI asserts that the Court

of Appeals for the Ninth Circuit held in

Delaney v. EPA, ‘‘that TCMs listed in

section 108 of the Act are presumed to

be reasonably available.’’ ACLPI goes on

to argue that ‘‘Congress adopted and

endorsed this decision in the 1990

Clean Air Act amendments,’’ and cites

for this proposition 136 Cong. Rec.

S16971 (daily ed. Oct. 27, 1990). In

reliance on these claims, ACLPI

concludes that Arizona ‘‘has failed to

rebut the [presumption regarding the]

availability of the section 108 measures

in the instant SIP, and therefore the SIP

must be rejected.’’ EPA disagrees with

both assertions and with the conclusion

ACLPI derives from them as well. In the

General Preamble (57 FR 13560–13561)

EPA presents a detailed discussion of its

interpretation of the RACM

requirement, including implementation

of TCMs. EPA continues to stand by that

interpretation and the General Preamble

discussion is explicitly referenced

herein as forming part of the

justification for the action being taken in

this document.

The portion of that discussion that

relates to TCMs acknowledges that in

pre-amended Act guidance EPA created

a presumption that all of the TCMs

listed in section 108(f) were RACM for

all areas, and required areas to

specifically justify a determination that

any measure was not RACM based on

local circumstances. However, EPA then

explicitly repudiated that earlier

guidance, explaining that, based on its

experience in implementing TCMs in

subsequent years, local circumstances

varied to such a degree that it was

inappropriate to presume that all of the

measures listed in section 108(f) were

per se reasonably available for all

nonattainment areas. See 44 FR 20372–

20375 (April 4, 1979). Under EPA’s

revised guidance, all states are required,

at a minimum, to address the section

108(f) measures, and where such a

measure is determined to be reasonably

available to implement it in accordance

with section 172(c)(1).

With respect to Delaney, the General

Preamble states EPA’s belief that the

court did not hold, as ACLPI claims,

that the statute required the Agency to

interpret the RACM requirement to

create a presumption that all TCMs are

reasonably available. Instead, the court

held that EPA itself had created such a

presumption and, therefore, was bound

to apply its own then-applicable 1979

RACM guidance. An administrative

agency is permitted to revise or alter

prior guidance so long as that guidance

continues to represent a reasonable

interpretation of the statutory

requirement. Nothing in the court’s

decision precluded EPA from revising

its own guidance based on later

experience in implementing TCMs. EPA

also believes that the Senate managers’

statement endorsing the Agency’s 1979

RACM guidance as construed by the

Delaney court reflected the view of

several legislators who had wanted the

Senate Committee bill to require that all

section 108(f) measures be implemented
Federal Register / Vol. 60, No. 68 / Monday, April 10, 1995 / Rules and Regulations 18017

in severe nonattainment areas. However,

the final version of the Senate bill did

not adopt this position. Consequently,

any subsequent statements by any

legislators that appear to consider the

interpretation relating to TCMs in EPA’s

1979 RACM guidance as still being

applicable post-1990 could not be said

to reflect the views of the Congress as

a whole, and thus should not be

accorded weight.

Sections 172(c) and 189(a)(1)(C),

along with relevant EPA guidance,

require the State to implement all

RACM provisions in its moderate area

plan to reduce PM10 emissions. EPA’s

proposed approval of the revised PM10

SIP concluded that there was an initial

list of 161 potential RACM. See 59 FR

38404. EPA has determined that the

State implemented 67 of those measures

as RACM. Of the remaining 94 potential

RACM, 62 measures were duplicates of

other measures. Finally, EPA believes

that the State acted in accordance with

Agency guidance in determining that

the remaining 32 measures were not in

fact, reasonably available because either;

(1) The source made a de minimis

contribution of PM10 or (2) the measure

was rejected on the basis of economic or

technological infeasibility. Thus, EPA

has determined that the State has

satisfied its moderate area RACM

requirements under sections 172(c) and

189(a)(1)(C).

In some cases, RACM has been met

through partial implementation of a

measure, such as doubling rather than

tripling bus service or implementing

measures only in populous

municipalities. The State provided more

detailed justification explaining why

partial implementation of many

measures constitutes RACM in

‘‘Summary of Local Government

Commitments to Implement Measures

and Reasoned Justification for NonImplementation for the MAG 1991

Particulate Plan for PM10 and Select

Measures from the Clean Air Act

Section 108(f)’’ (‘‘MAG Supplementary

Document’’). The Mag Supplementary

Document was submitted at EPA’s

request after EPA proposed to approve

the revised PM10 SIP in an effort to

respond to comments received by EPA

claiming that the SIP submittal did not

contain sufficient detail regarding the

State’s justification for rejecting

potential RACM. The MAG

Supplementary Document has been

included in the Administrative Record

for this rulemaking and, to the extent

that it provides additional detail and

elaborates on the State’s reasoning

regarding its RACM determination,

forms, in part, a complementary basis

for EPA’s final approval of the State’s

revised PM10 SIP, including EPA’s

finding that the State complied with its

obligation under Sections 172(c) and

189(a)(1)(C) to implement all RACM.

The list of 67 RACM the State has

implemented includes 41 measures that

were adopted in the State’s 1993 Carbon

Monoxide and Ozone Plans (‘‘1993 CO

Plan’’). EPA believes that adoption and

inclusion of the measures in the 1993

CO Plan is a sufficiently meaningful and

legally binding action by the State

which, moreover, constitutes

compliance with the Act’s requirement

to submit a plan which includes

provisions to assure that RACM is

implemented no later than December

10, 1993. ACLPI’s comments on

individual measures addressed in the

accompanying TSD state that certain

measures have not been adopted ‘‘in

committed form.’’ For the measures in

the 1993 CO Plan, EPA believes that the

State has provided adequate evidence

that the plan is being implemented and

is enforceable. The State’s 1993 CO plan

builds upon the control strategy

developed and adopted for the MAG

1987 CO plan. Many of the measures in

the 1993 CO plan continue

implementation of transportation

control measures included in the 1987

CO plan. The 1993 CO plan also

contains new control measures that

were not in the 1987 CO plan. EPA is

aware that, for the most part, the State

is not claiming PM10 emission reduction

credits for the measures developed for

their CO and ozone plans. The PM10 SIP

does take emission reduction credit for

Maricopa County’s Trip Reduction

Ordinance and the operation of two

alternative fueled buses. The State

explained instead that reductions from

RACM in the 1987 CO Plan were

calculated in the 1989 baseline PM10

emission inventory. These CO measures

may qualify as RACM regardless of

whether emissions reduction credit can

be assigned, as noted by EPA’s proposed

approval, stating: ‘‘These CO measures

are included in the PM10 SIP revision

because they could also reduce

particulate matter emissions.’’ 59 FR

38404. EPA has not received direct

adverse comment on the proposal to

include the CO measures in the State’s

revised PM10 SIP as RACM, and is

therefore taking final action on that

proposal. The 41 measures from the CO

and Ozone Plans that are treated as

RACM in the revised PM10 SIP are listed

in the TSD, Attachment #2, for this

NFRM.

In addition to RACM from the 1993

CO Plan, the State is implementing

measures required by national

rulemakings. These measures are also

RACM for the moderate area PM10 SIP.

For example, the State must ensure that

cleaner commercial aircraft land in the

PPA based on the federal Airport Noise

Control Act, 49 U.S.C. App. 2151 (1990)

(ANCA). Municipalities in the PPA are

required to comply with ANCA. Thus,

even though the clean aircraft

requirement is established by ANCA, it

also satisfies the State’s obligation to

assure implementation of RACM. EPA

believes the State may satisfy the RACM

obligation pursuant to compliance with

ANCA rather than through adoption in

the revised PM10 SIP of measure No. 45,

‘‘Replacement of High Emitting

Aircraft,’’ offered in the public

comments. The accompanying TSD lists

RACM which are based on national

rulemakings or emissions standards.

For diesel fuel controls, EPA believes

that the State has adequately

demonstrated that partial

implementation of this measure through

compliance with national diesel fuel

standards is RACM, and that the State

has also justified rejecting implementing

the California diesel fuel standards as

RACM. Likewise, the State’s partial

implementation of a measure requiring

conversion of its diesel fleet to clean

fuels constitutes RACM. The State has

also partially implemented measures

regulating nonroad utility heavy duty

engines and utility engines through

compliance with national standards.

EPA believes that partial

implementation of this measure is all

that was reasonable for the state to

implement by December 10, 1993. The

implementation of controls associated

with diesel fuels and engines is

discussed more fully in the

accompanying TSD. The TSD also

discusses the State’s justification for

rejecting as RACM an inspection and

maintenance testing program for diesel

vehicles.

Comprehensive rules are another

source of RACM. The State submitted

several comprehensive rules, such as

Rules 310, 311, 314 and 316, that

encompass RACM that are separate from

the initial list of 161 possible measures.

For example, Rule 310 addresses 13 of

the 15 measures that EPA considered to

be reasonably available for the control of

fugitive dust. See 59 FR 38404. The

accompanying TSD provides a more

detailed discussion of RACM for

fugitive dust based on implementation

of Rule 310. To control residential wood

combustion, Maricopa County has

adopted a new rule, Residential

Woodburning Restriction Ordinance

(RWRO), and the State has included a

provision in HB 2001 that provides a

personal income tax deduction for

people that purchase EPA-certified

wood heaters. The County also has a
18018 Federal Register / Vol. 60, No. 68 / Monday, April 10, 1995 / Rules and Regulations

public education and awareness

program in place to inform residents of

the impacts of residential wood

combustion on air quality and public

health and the requirements of the

County’s woodburning restriction

ordinance. These measures cover all of

the four RACM listed by EPA in its

General Preamble to address particulate

matter emissions from residential wood

combustion. The State’s adoption of the

County’s RWRO satisfies the obligation

to adopt measures to reduce emissions

from residential wood combustion. As

with measures in the 1993 CO Plan,

EPA believes that the State has adopted

the RWRO in sufficiently meaningful

legal form to ensure that RACM is being

implemented in compliance with the

Act. The TSD also discusses this

measure.

From the initial list of 161 possible

RACM, EPA determined that 62

measures are duplicates of others and

consequently did not require any further

consideration. These duplicate

measures are also listed in the TSD,

Attachment #1.

Finally, EPA has determined that the

State was justified in rejecting 32 of the

remaining measures from the list of 161

possible RACM. These measures, which

are listed in the TSD, Attachment #3,

were discussed in EPA’s proposed

approval, 59 FR 38404, and are not

reasonably available because they are

either de minimis or economically or

technologically infeasible. Certain

measures are not reasonably available

because the contribution from the

source is de minimis in the PPA, such

as Public Comment No. 37 which

provides for reducing emissions from

ship berthing. There are no ship

berthing facilities in the PPA.

Alternatively, the State has provided

reasoned justifications to reject certain

measures as RACM based on economic

or technological infeasiblity, such as

railroad electrification. Those measures

rejected from the initial list of 161

possible RACM, and the justifications

for such rejections, are provided in the

accompanying TSD.

For the reasons stated above, EPA has

determined that the State has satisfied

its obligation under the Act to submit a

plan containing provisions to assure

that RACM has been implemented by

December 10, 1993, and, consistent with

Agency guidance, has provided a

reasoned justification for rejecting other

potential measures on grounds that they

are not RACM. The accompanying TSD

provides a detailed response to each

specific measure or type of measure that

was raised in ACLPI’s comments on the

RACM portion of EPA’s proposed

approval of the State’s revised PM10 SIP.

Many other measures were duplicates of

measures that were either adopted or

rejected. For the remaining measures

which the State rejected, EPA has given

careful consideration to ACLPI’s

thorough comments. On balance,

however, the State has complied with

its obligation to provide EPA with a

reasoned justification for the rejection of

the remaining potential RACM.

D. RFP

Comment: The SIP fails to show RFP

as required by section 172(c)(2) of the

Act. According to the SIP, emissions of

PM10 increase in 1994 compared to the

baseyear.

Response: EPA disagrees with the

commenter’s assertion that the SIP does

not demonstrate reasonable further

progress in reducing PM10 emissions.

While the State’s demonstration showed

a small reduction in PM10 emissions

from the implementation of Maricopa

County’s Rule 310—Fugitive Dust, EPA

believes that the emission reduction that

the State associated with this rule was

overly conservative. When the State

calculated the emission reduction

potential for Rule 310, they only applied

the control effectiveness to the urban

portions of the PPA. EPA believes the

control effectiveness should have been

applied to the entire nonattainment area

since the rule applies throughout

Maricopa County which includes the

entire nonattainment area. When EPA

recalculated the emission reduction

benefits of the SIP’s control strategy the

reduction potential equals 8,677 tons

per year. The 1989 base year inventory

is 40,975 tons per year and was

projected to grow to 45,981 tons per

year in 1994. Therefore, the total 1994

projected inventory after application of

RACM would equal 37,304 tons per year

which shows, consistent with EPA’s

guidance on demonstrating RFP, which

is described in greater detail earlier in

this notice, that the area has indeed

made progress in reducing emissions

from the base year total, and thus has

demonstrated it has met the

requirements of section 172(c)(2) for the

period 1990–1994.

E. Rules

Comment: Rule 310 is not approvable

because the rule does not meet the Act’s

or EPA’s criteria for enforceability. The

rule must make clear to whom it applies

and be sufficiently specific that a source

is fairly on notice as to the standard it

must meet. No threshold level of dust

generation is specified, leaving sources

to guess as to when the ordinance will

be triggered.

Response: Rule 310 does specify the

sources that are subject to control. Rule

310 applies to any activity, equipment,

operation and/or man-made or mancaused condition or practice capable of

generating fugitive dust. Section 300 of

the Rule further specifies the types of

activities and sources of fugitive dust

that are subject to the rule’s

requirements (e.g., vehicle use in open

areas and vacant parcels; unpaved

parking areas/staging areas; unpaved

haul/access roads; disturbed surface

areas; vacant areas; material handling

operations; material transport; haul

trucks; roadways, streets and alleys; and

cattle feedlots and livestock areas).

Further, as discussed in more detail in

response to the next comment, the

requirements of Rule 310 are triggered if

a source of fugitive dust violates either

the 20% opacity standard in Section 301

or the requirement to implement RACM

in Sections 301 through 314. Thus, any

activity that causes visible emissions in

excess of 20 percent opacity or any

activity that is carried out contrary to

the implementation of RACM is a

violation of Rule 310. For new sources

of fugitive dust, Rule 310 requires

compliance with an approved dust

control plan as implementation of

RACM, subject to approval by the

control officer; existing sources of

fugitive dust are required to comply

with the RACM defined in the Rule.

Comment: The standards of

performance [in Rule 310] are equally

vague. The rule merely states that

reasonably available control measures

must be applied. That term is in turn

defined merely by listing examples of

vaguely described control steps without

requiring use of any specific measure or

a specific level of effort in any specific

context. Thus, any specific level of

control that the County seeks to impose

will be subject to challenge.

Response: ACLPI’s comments tend to

oversimplify the requirements of Rule

310. Because of the very many different

circumstances under which fugitive

dust can be generated, it would be

nearly impossible for the County to

predict every situation and prescribe a

specific control measure for it. As noted

above, Rule 310 contains two standards

to enforce. One standard with which all

sources are required to comply is the

20% opacity limit. The second standard

is the RACM requirement. New sources

of fugitive dust are required to comply

with approved dust control plans,

which become enforceable as permit

conditions. For existing sources of

fugitive dust, Rule 310 addresses the

variability of sources and activities by

either prescribing RACM (see, e.g.,

Section 311.2) or listing potential

reasonably available fugitive dust

control measures (see, e.g., Sections 306
Federal Register / Vol. 60, No. 68 / Monday, April 10, 1995 / Rules and Regulations 18019

& 221). Yet Rule 310 allows a source to

tailor its own control strategy to fit its

particular situation and EPA believes

that such flexibility is necessary. When

the activity or situation does not involve

a high degree of variability, the

measures that apply to that source are

typically more prescriptive. For

example, Section 311.2, which applies

to all haul trucks operating in the PPA,

sets forth specific requirements as

RACM. If haul trucks fail to implement

these measures, there is a violation of

Rule 310. Even if the haul trucks

comply with Section 311.2, but still

violate the 20% opacity standard, there

is a violation of Rule 310. Other sections

of the rule are equally enforceable

through permit conditions. Section 303

of Rule 310 requires that a permit

application for any new source subject

to Section 302 of Rule 310 shall include

a Control Plan to prevent or minimize

fugitive dust, and the Control Plan must

be approved by the County Control

Officer. If the County determines

through a violation of the separate 20%

opacity standard that a Control Plan is

not sufficient to control fugitive dust,

the responsible party is required to

revise the control plan accordingly.

Thus, the County will be able to enforce

the provisions of this Rule 310 through

two standards: the 20% opacity

standard and the requirement to

implement RACM through a Control

Plan or as defined in the Rule.

The original version of Rule 310 that

was submitted to EPA contained a

provision that EPA believed threatened

the enforceability of the rule. The

original rule contained a provision

(221.9) that allowed the Control Officer

to approve the use of alternative control

methods not listed in the rule. This

provision has since been deleted from

Rule 310.

Comment: The State and County have

not committed the necessary resources

and personnel to ensure enforcement of

rules 310, 311, 314, and 316, as required

under section 110(a)(2)(E) and EPA

guidance. Nor does the SIP contain a

program to provide for enforcement of

any of the SIP control strategies, as

required by section 110(a)(2)(C) of the

Act.

Response: The County has committed

the necessary resources and personnel

to implement rules 310, 311, 314, and

316. Details on the level of personnel

and funding, as required by section

110(a)(2)(E) of the Act, as well as

enforcement strategies as required by

section 110(a)(2)(C) of the Act are

provided in the document ‘‘MAG 1991

Particulate Plan for PM10 for the

Maricopa County Area and 1993

Revisions, Commitments for

Implementation, Volume Three’’,

section entitled ‘‘Maricopa County’’.

F. Other

1. Public Comment

Comment: In the process of

developing and submitting the PM10 SIP

revision for Phoenix, MAG and the State

have on several occasions failed in their

responsibility to seriously consider

public comment prior to adopting plans.

Response: The State has provided a

section in all of its PM10 SIP submittals

which includes all public comments

received and the State’s responses to

those comments.

2. State Assurances

Comment: The PM10 SIP does not

contain, as required by section

110(a)(2)(E)(iii) of the CAA, the

necessary assurances that, where the

State has relied on a local or regional

government, agency, or instrumentality

for the implementation of any plan

provision, the State has responsibility

for ensuring adequate implementation

of such plan provision.’’ While the State

contends that this requirement is met by

A.R.S. § 49–406.J, the process laid out

by this State statute does not meet the

plain requirements of section

110(a)(2)(E)(iii) and is completely

inconsistent with the Act’s requirements

for SIP enforceability, timely

implementation of control measures,

and expeditious attainment.

Response: EPA has historically

adopted a rule of reasonableness in

construing the language of section

110(a)(2)(E)(iii) of the Act with respect

to the extent to which the State must

show that its plan evinces a showing of

responsibility sufficient to ensure

adequate implementation of the plan’s

provisions by local or regional

governments. EPA, for example, does

not require the State to adopt into its

own plan the local government’s

implementing provisions, but has

considered it sufficient for the State to

describe and reference those provisions

and the accompanying descriptions of

the local municipalities intended

implementation actions. The State has

included in its plan submission a copy

of the Arizona Laws Relating to

Environmental Quality, § 49–406. J. of

which contains the assurances required

by section 110(a)(2)(E). If any person

fails to implement an emission

limitation or control measure, the

relevant State official is required to

issue a written finding to that effect,

which may also necessitate the holding

of a conference regarding the failure

with the offending person. If a

determination is made that the failure

has not been corrected, the attorney

general, at the responsible official’s

request, must file an action, seeking

either ‘‘a preliminary injunction, a

permanent injunction, or any other

relief provided by law.’’ Section 49–407

of the Arizona Revised Statutes provides

that citizens may sue the director to

perform his or her duty. While some

opportunity is provided to rectify

problems short of taking legal action,

EPA does not believe this is

unreasonable, nor that the affected State

officials ultimately have discretion to

ignore the law’s requirements. The

comment engages in some speculation,

describing several possible scenarios

under which implementation by the

local authorities may not occur. Despite

these concerns—which are admittedly

speculative—EPA believes, based on its

experience in administering this

provision of the Act, that the relevant

sections of the State’s law provides an

adequate degree of assurance that the

control measures in the plan are

enforceable and will be fully

implemented.

VI. Executive Order 12866

The Office of Management and Budget

has exempted this regulatory action

from Executive Order 12866 review.

VII. Regulatory Flexibility

Under the Regulatory Flexibility Act,

5 U.S.C. 600 et seq., EPA must prepare

a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities. 5 U.S.C 603

and 604. Alternatively, EPA may certify

that the rule will not have a significant

economic impact on a substantial

number of small entities. Small entities

include small businesses, small not-forprofit enterprises, and government

entities with jurisdiction over

populations of less than 50,000.

SIP approvals under section 110 and

subchapter I, part D of the Clean Air Act

do not create any new requirements, but

simply approve requirements that the

State is already imposing. Therefore,

because the federal SIP approval does

not impose any new requirements, I

certify that it does not have a significant

impact on small entities affected.

Moreover, due to the nature of the

federal-state relationship under the

Clean Air Act, preparation of a

regulatory flexibility analysis would

constitute federal inquiry into the

economic reasonableness of state action.

The Clean Air Act forbids EPA to base

its actions concerning SIPs on such

grounds. Union Electric Co. v. U.S.

E.P.A., 427 U.S. 246, 256–66 (S.Ct.

1976); 42 U.S.C. 7410(a)(2).
18020 Federal Register / Vol. 60, No. 68 / Monday, April 10, 1995 / Rules and Regulations

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Incorporation by

reference, Intergovernmental relations,

Particulate matter, Reporting and

recordkeeping requirements.

Note: Incorporation by reference of the

State Implementation Plan for the State of

Arizona was approved by the Director of the

Federal Register on July 1, 1982.

Dated: February 28, 1995.

Felicia Marcus,

Regional Administrator.

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. 7401–7671q.

Subpart D—Arizona

2. Section 52.120 is amended by

adding paragraphs (c) (67)(i)(B), (73),

(74), and (77) and by adding and

reserving paragraphs (c) (72), (75), and

(76) to read as follows:

§ 52.120 Identification of plan.

* * * * *

(c) * * *

(67) * * *

(i) * * *

(B) Amended Maricopa County

Division of Air Pollution Control Rule

314, adopted July 13, 1988.

* * * * *

(72) [Reserved]

(73) Plan revisions were submitted on

August 11, 1993 by the Governor’s

designee.

(i) Incorporation by reference.

(A) The Maricopa Association of

Governments 1991 Particulate Plan for

PM10 for the Maricopa County Area and

1993 Revisions, Chapters 1, 2, 3, 4, 5, 6,

7, 8, 10 and Appendices A through D,

adopted August 11, 1993.

(74) Plan revisions were submitted by

the Governor’s designee on March 3,

1994.

(i) Incorporation by reference.

(A) Maricopa County Division of Air

Pollution Control new Rule 316,

adopted July 6, 1993, and revised Rule

311, adopted August 2, 1993.

(B) The Maricopa Association of

Governments 1991 Particulate Plan for

PM10 for the Maricopa County Area and

1993 Revisions, Revised Chapter 9

adopted on March 3, 1994.

(75) [Reserved]

(76) [Reserved]

(77) Amended regulations for the

Maricopa County Division of Air

Pollution Control submitted by the

Governor’s designee on December 19,

1994.

(i) Incorporation by reference.

(A) Maricopa County Division of Air

Pollution Control Rule 310, adopted on

September 20, 1994.

[FR Doc. 95–8215 Filed 4–7–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 63

[AD–FRL–5183–3]

RIN 2060–AC19

National Emission Standards for

Hazardous Air Pollutants for Source

Categories; Organic Hazardous Air

Pollutants from the Synthetic Organic

Chemical Manufacturing Industry and

Other Processes Subject to the

Negotiated Regulation for Equipment

Leaks

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule; amendments.

SUMMARY: On October 24 and 28, 1994,

EPA proposed amendments to certain

aspects of the ‘‘National Emission

Standards for Hazardous Air Pollutants

from the Synthetic Organic Chemical

Manufacturing Industry and Other

Processes Subject to the Negotiated

Regulation for Equipment Leaks’’ 59 FR

19402 (April 22, 1994) and 59 FR 29196

(June 6, 1994) (collectively known as the

‘‘hazardous organic NESHAP’’ or the

‘‘HON’’). This action announces the

EPA’s final decisions on those proposed

amendments.

The rule is being revised to provide a

deferral of HON requirements for source

owners or operators who wish to make

an area source certification and to

establish minimum documentation

requirements. This action is being taken

because EPA believes that in view of

current circumstances the requirements

of the rule should not be imposed on

sources that are likely to be designated

as area sources in the near future. The

rule is also being revised to extend the

compliance date for certain compressors

and for surge control vessels and

bottoms receivers to allow the time

necessary for installation of controls.

The applicability of control

requirements for surge control vessels

and bottoms receivers is also being

revised to reduce confusion over the

rule.

EFFECTIVE DATE: April 10, 1995.

FOR FURTHER INFORMATION CONTACT: Dr.

Janet S. Meyer, Emission Standards

Division (MD–13), U.S. Environmental

Protection Agency, Office of Air Quality

Planning and Standards, Research

Triangle Park, North Carolina 27711,

telephone number (919) 541–5254.

SUPPLEMENTARY INFORMATION:

I. Background

A. Federal Register Actions

On October 24, 1994 (59 FR 53359)

EPA announced that, pursuant to Clean

Air Act section 307(d)(7)(B), it was

reconsidering certain portions of the

HON rule and issuing a 3 month

administrative stay. The October 24,

1994 administrative stay applied only to

those source owners or operators who

make a representation in writing that

resolution of the area source definition

issues could affect whether the facility

is subject to the HON. As part of that

action, EPA also proposed amendments

to the HON to establish procedures for

a source to obtain a deferral of HON

requirements for such sources and to

establish minimum documentation

requirements.

In addition, on October 28, 1994 (59

FR 54131), EPA announced an

administrative stay of the effectiveness

of the provisions of the HON for

compressors and for surge control

vessels and bottoms receivers for

sources subject to the October 24, 1994

compliance date. As part of that action,

EPA also proposed amendments to the

HON to revise compliance dates for

compressors and for surge control

vessels and bottoms receivers to provide

sufficient time to make the equipment

changes necessary for compliance with

the rule. Provisions to document the use

of the compliance extensions for

compressors were also proposed.

Changes were also proposed to the

applicability of control requirements for

surge control vessels and bottoms

receivers.

Along with both notices of partial stay

and reconsideration, EPA also proposed

to extend the compliance dates beyond

the 3 months provided, as necessary to

complete reconsideration and revision

of the rule in question. On January 27,

1995 (60 FR 5320), EPA amended the

HON to extend the compliance dates

until April 24, 1995 to allow time to

complete the two sets of revisions to the

rule.

B. Public Participation

Ten comment letters were received on

each of the two notices of proposed

amendments. All comment letters

received were from industry

representatives or trade associations. No

comments objecting to the EPA’s basic

approach were received on either the

October 24 or the October 28, 1994

proposed amendments. The significant