21372 Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Rules and Regulations

Court of Appeals for the District of

Columbia Circuit within 60 days of

publication of this action. Under

Section 307(b)(2) of the Act, the

requirements that are the subject of this

final rule may not be challenged later in

civil or criminal proceedings brought by

EPA to enforce these requirements.

III. Administrative Requirements

A. Docket

The docket for this regulatory action

is A–93–32, the same docket as the

original final rule, and a copy of today’s

amendment to the final rule will be

included in the docket. The docket is an

organized and complete file of all the

information submitted to, or otherwise

considered by, EPA in the development

of the original rulemaking. The

principal purposes of the docket are:

(1) To allow interested parties a

means to identify and locate documents

so that they can effectively participate

in the rulemaking process, and

(2) To serve as the record in case of

judicial review. The docket is available

for public inspection at EPA’s Air and

Radiation Docket and Information

Center, which is listed under the

ADDRESSES section of this document.

B. Regulatory Impact Analysis

This rule was classified ‘‘nonsignificant’’ under Executive Order

12866 and therefore was not reviewed

by the Office of Management and

Budget.

C. Impact on Reporting Requirements

The information collection

requirements of the previously

promulgated rule for Regulations

Governing Equivalent Emission

Limitations by Permit were submitted to

and approved by the Office of

Management and Budget. A copy of this

Information Collection Request (ICR)

document (OMB control number 2060–

0266) may be obtained from Sandy

Farmer, OPPE Regulatory Information

Division (2136), U.S. Environmental

Protection Agency, 401 M Street, S.W.,

Washington, D.C. 20460, or by calling

(202) 260–2740. Today’s change to the

final rule to delay the deadline for

submittal of section 112(j) permit

applications does not affect the

information collection burden estimates

made previously. Therefore, the ICR has

not been revised.

D. Impact on Small Entities

The Regulatory Flexibility Act of 1980

requires the identification of potentially

adverse impacts of Federal regulations

upon small business entities. The Act

specifically requires the completion of a

Regulatory Flexibility Analysis in those

instances where small business impacts

are possible. Because this rulemaking

imposes no economic impacts, adverse

or otherwise, a Regulatory Flexibility

Analysis has not been prepared.

Pursuant to the provisions of 5 U.S.C.

605(b), I hereby certify that this rule will

not have a significant economic impact

on a substantial number of small

business entities.

E. Reduction of Governmental Burden

Executive Order 12875 (‘‘Enhancing

the Intergovernmental Partnership’’) is

designed to reduce the burden to State,

local, and Tribal governments of the

cumulative effect of unfunded Federal

mandates. The Order recognizes the

need for these entities to be free from

unnecessary Federal regulation to

enhance their ability to address

problems they face and provides for

Federal agencies to grant waivers to

these entities from discretionary Federal

requirements. The Order applies to any

regulation that is not required by statute

and that creates a mandate upon a State,

local, or Tribal government. The EPA

anticipates that there will be no

additional cost burden imposed on

State, local, and Tribal governments as

a result of today’s action. Indeed, the

purpose of the action is to reduce

unnecessary burden on permitting

agencies.

F. Environmental Justice

Executive Order 12898 requires that

each Federal agency shall make

achieving environmental justice part of

its mission by identifying and

addressing, as appropriate,

disproportionately high and adverse

human health or environmental effects

of its programs, policies, and activities

on minority and low-income

populations. Today’s action will help

ensure timely compliance and the

application of consistent regulatory

requirements by allowing the section

112(d) MACT standards to become

effective without triggering an

unnecessary section 112(j) process.

Therefore, no adverse human health or

environmental effects are anticipated as

a result of today’s action.

G. Unfunded Mandates

Under Section 202 of the Unfunded

Mandates Reform Act of 1995

(‘‘Unfunded Mandates Act’’), the EPA

must prepare a budgetary impact

statement to accompany any proposed

or final rule that includes a Federal

mandate that may result in estimated

costs to State, local, or tribal

governments in the aggregate; or to the

private sector, of $100 million or more.

Under Section 205, the EPA must select

the most cost-effective and least

burdensome alternative that achieves

the objectives of the rule and is

consistent with statutory requirements.

Section 203 requires the EPA to

establish a plan for informing and

advising any small governments that

may be significantly or uniquely

impacted by the rule.

The EPA has determined that the

action promulgated today does not

include a Federal mandate that may

result in estimated costs of $100 million

or more to either State, local, or tribal

governments in the aggregate, or to the

private sector. Therefore, the

requirements of the Unfunded Mandates

Act do not apply to this action.

List of Subjects in 40 CFR Part 63

Environmental protection,

Administrative practices and

procedures, Air pollution control,

Hazardous substances,

Intergovernmental relations, Reporting

and recordkeeping requirements.

Dated: May 3, 1996.

Carol M. Browner,

Administrator.

For the reasons set out in the

preamble, 40 CFR Part 63 is amended as

follows:

PART 63—[AMENDED]

1. The authority citation for part 63

continues to read as follows:

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

2. In § 63.51, the definition of

‘‘Section 112(j) deadline’’ is revised to

read as follows:

§ 63.51 Definitions.

* * * * *

Section 112(j) deadline means the

date 18 months, after the date by which

a relevant standard is scheduled to be

promulgated under this part, except for

all major sources listed in the source

category schedule for which a relevant

standard is scheduled to be promulgated

by November 15, 1994, the section

112(j) deadline is November 15, 1996.

* * * * *

[FR Doc. 96–11737 Filed 5–9–96; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 81

[AZR91–0003; FRL–5503–7]

Clean Air Act Reclassification;

Arizona-Phoenix Nonattainment Area;

PM10

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.
Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Rules and Regulations 21373

SUMMARY: In this document EPA is

making a final finding that the Phoenix

Planning Area (PPA) has not attained

the PM10 (particulate matter 10 microns

or less in aerodynamic diameter)

national ambient air quality standards

(NAAQS) by the applicable attainment

date in the Clean Air Act (CAA) for

moderate PM10 nonattainment areas,

December 31, 1994. This finding is

based on EPA’s review of PM10 ambient

air quality data. As a result of this

finding, the PPA is reclassified as a

serious PM10 nonattainment area by

operation of law. The intended effect of

the reclassification is to allow the State

18 months from the effective date of this

action to submit a new State

Implementation Plan (SIP)

demonstrating attainment of the PM10

NAAQS by December 31, 2001, the CAA

attainment date for serious areas.

EFFECTIVE DATE: This action is effective

on June 10, 1996.

FOR FURTHER INFORMATION CONTACT:

Wallace Woo, Chief, Plans Development

Section (A–2–2), Air Planning Branch,

Air and Toxics Division, U.S.

Environmental Protection Agency,

Region 9, 75 Hawthorne Street, San

Francisco, California 94105, (415) 744–

1207.

SUPPLEMENTARY INFORMATION:

I. Background

A. CAA Requirements and EPA Actions

Concerning Designation and

Classification

On November 15, 1990, the date of

enactment of the 1990 Clean Air Act

Amendments (CAA), PM10 areas

meeting the qualifications of section

107(d)(4)(B) 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. Pursuant to section

188(a), all PM10 nonattainment areas

were initially classified as moderate by

operation of law upon designation as

nonattainment. These nonattainment

designations and moderate area

classifications were codified in 40 CFR

part 81 in a Federal Register notice

published on November 6, 1991 (56 FR

56694).

Under section 188(c)(1) of the CAA,

the attainment deadline for all PM10

nonattainment areas originally classified

as moderate was no later than December

31, 1994. Under section 188(d), EPA

may, upon application by a state, extend

the attainment deadline if the state has

complied with all requirements and

commitments pertaining to the area in

the applicable implementation plan. In

addition, in order to qualify for an

extension there must have been no more

than one exceedance of the 24 hour

national ambient air quality standard

(NAAQS) in the area in the year

preceding the extension year, and the

annual mean concentration of PM10 in

the area for such year must be less than

or equal to the standard. Under this

provision, EPA may grant up to two one

year extensions if these conditions have

been met.

B. Reclassification as Serious

Nonattainment

EPA has the responsibility, pursuant

to sections 179(c) and 188(b)(2) of the

CAA, of determining within six months

of the applicable attainment date,

whether PM10 nonattainment areas have

attained the NAAQS. Section 179(c)(1)

of the Act provides that these

determinations are to be based upon an

area’s air quality as of the attainment

date, and section 188(b)(2) is consistent

with this requirement. EPA makes the

determinations of whether an area’s air

quality is meeting the PM10 NAAQS

based upon air quality data gathered at

monitoring sites in the nonattainment

area and entered into the Aerometric

Information Retrieval System (AIRS).

These data are reviewed to determine

the area’s air quality status in

accordance with EPA guidance at 40

CFR part 50, Appendix K.

Pursuant to Appendix K, attainment

of the annual PM10 standard is achieved

when the annual arithmetic mean PM10

concentration is equal to or less than 50

μg/m3. The annual average is

determined by first calculating the

average PM10 concentration for each

calendar quarter. The annual average is

then calculated by averaging the four

calendar quarter averages. Attainment of

the 24 hour standard is determined by

calculating the expected number of

exceedances of the 150 μg/m3 limit per

year. The 24 hour standard is attained

when the expected number of

exceedances is 1.0 or less. A total of

three consecutive years of clean air

quality data is generally necessary to

show attainment of the 24 hour and

annual standards for PM10. A complete

year of air quality data, as referred to in

40 CFR part 50, Appendix K, is

comprised of all four calendar quarters

with each quarter containing data from

at least 75 percent of the scheduled

sampling days.

Under section 188(b)(2)(A) of the

CAA, a moderate PM10 nonattainment

area must be reclassified as serious by

operation of law after the statutory

attainment date if the Administrator

finds that the area has failed to attain

the NAAQS. Pursuant to section

188(b)(2)(B), EPA must publish a notice

in the Federal Register identifying those

areas that failed to attain the standard

and the resulting reclassification.

C. Effect of Reclassification

PM10 nonattainment areas reclassified

as serious under section 188(b)(2) of the

CAA are required to submit, within 18

months of the area’s reclassification, SIP

revisions providing for the

implementation of best available control

measures (BACM) no later than four

years from the date of reclassification.

The SIP also must contain a

demonstration that the implementation

of BACM will provide for attainment of

the PM10 NAAQS no later than

December 31, 2001. EPA has provided

specific guidance on developing serious

area PM10 SIP revisions in an addendum

to the General Preamble to Title I of the

Clean Air Act. See 59 FR 41998 (August

16, 1994).

D. Proposed Finding of Failure to Attain

On June 7, 1995 EPA proposed to find

that the Phoenix Planning Area (PPA)

had failed to attain the PM10 NAAQS by

the applicable attainment date. 60 FR

30046. This proposed finding was based

on PM10 monitoring data collected by

Maricopa County during the years 1992

through 1994. The air quality

monitoring data for the PPA showed

three violations of the 24 hour PM10

NAAQS in 1992 and violations of the

annual PM10 NAAQS in 1992 and 1993.

The air quality monitoring data are

discussed in detail in the Notice of

Proposed Rulemaking (NPRM). 60 FR

30046, 30047. The following table

summarizes the data on which EPA has

based its finding of failure to attain:

Site

24 hour exceedances Annual exceedances

Conc. Date 1992 1993

4732 S. Central, Phoenix ........................................................................ 171 μg/m3 11/20/92

158 μg/m3 12/2/92

1475 E. Pecos, Chandler ........................................................................ 156 μg/m3 11/20/92 56 μg/m3 58 μg/m3
21374 Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Rules and Regulations

On October 20, 1995, the State

requested, under section 188(d) of the

CAA, that EPA extend the attainment

deadline for the PPA from December 31,

1994 to December 31, 1995. This request

was based on the lack of recorded

exceedances of the PM10 NAAQS in

1994. In 1995, however, the PPA

recorded two exceedances of the 24

hour NAAQS. On June 28, 1995 a

concentration of 160 μg/m3 was

recorded at the Chandler monitoring

site, and on July 30, 1995 a

concentration of 252 μg/m3 was

recorded, also at the Chandler

monitoring site. Additionally, the

annual average concentration at the

Chandler site in 1995 was 57.9 μg/m3.

Thus, while the State technically

qualified for a one year attainment date

extension, the 1995 violations

effectively moot this request because the

area cannot qualify for a second

extension. Therefore, EPA does not

intend to act on the State’s extension

request.

II. Response to Comments on Proposed

Finding

During the public comment period on

EPA’s proposed finding, the Agency

received comment letters from: one

State legislator; the Arizona Department

of Environmental Quality (ADEQ); the

Arizona Department of Transportation

(ADOT); the Arizona Motor Transport

Association; the Maricopa Association

of Governments (MAG); and the

Maricopa County Board of Supervisors.

The issues raised in these comment

letters are summarized below and are

followed by EPA’s responses.

A. Economic Impacts of EPA’s Finding

Comment: EPA’s determination in the

proposed rulemaking that a finding of

failure to attain the PM10 standard is not

subject to certain requirements in

Executive Order (E.O.) 12866 or the

Unfunded Mandates Reform Act is

incorrect, as is EPA’s certification that

this action does not have a significant

impact on small entities.

Response: Under E.O. 12866, 58 FR

51735 (October 4, 1993), EPA is

required to determine whether

regulatory actions are significant and

therefore should be subject to Office of

Management and Budget (OMB) review,

economic analysis, and the

requirements of the E.O. The E.O.

defines a ‘‘significant regulatory action’’

as one that is likely to result in a rule

that may meet at least one of the four

criteria identified in section 3(f),

including, under paragraph (1), that the

rule may ‘‘have an annual effect on the

economy of $100 million or more or

adversely affect, in a material way, the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local, or tribal governments or

communities.’’

Sections 202, 203 and 205 of the

Unfunded Mandates Reform Act of 1995

(Unfunded Mandates Act), 2 U.S.C.

§§ 1501–1571, requires EPA to assess

whether various actions undertaken in

association with proposed or final

regulations include a Federal mandate

that may result in estimated costs of

$100 million or more to the private

sector, or to State, local or tribal

governments in the aggregate.

Under the Regulatory Flexibility Act,

5 U.S.C. § 601 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-for-profit enterprises, and

government entities with jurisdiction

over populations of less than 50,000.

Under section 188(b)(2) of the CAA,

EPA findings of failure to attain are

based upon air quality considerations,

and reclassification of nonattainment

areas must occur by operation of law in

light of certain air quality conditions.

Such findings and reclassification do

not, in-and-of-themselves, impose any

new requirements on any sectors of the

economy. In addition, because the

statutory requirements for the

differently classified areas are clearly

defined, and because those

requirements are automatically triggered

by classifications that, in turn, are

triggered by air quality values, findings

of failure to attain and reclassification

cannot be said to impose a materially

adverse impact on State, local, or tribal

governments or communities.

This conclusion does not in any way

reflect a determination regarding

estimated or actual impacts of a

reclassification on Arizona’s economy.

It is important to understand that the

sole regulatory action that EPA is taking

under the CAA involves only a factual

finding of whether the Phoenix area

attained the PM10 standards by

December 31, 1994, the statutory

attainment date for moderate areas. If

EPA finds that the area has failed to

attain by the deadline, then the area is

reclassified as serious, not by EPA, but

by operation of law. A finding by EPA

that an area has failed to timely attain

the PM10 standards is based on air

quality monitoring data collected by

Maricopa County and ADEQ from 1992

through 1994. The statute does not

require any action on EPA’s part, since

the CAA specifies automatic

reclassification of an area as a result of

a finding that the area has not attained

the PM–10 standards. See section

188(b)(2). Because EPA’s role in making

such a finding is essentially ministerial,

the Agency has concluded that it does

not impose any new requirements or

mandates on any sector of the State

economy.

For the above reasons, EPA has

determined that the finding of failure to

attain being made today would result in

none of the effects identified in section

3(f) of E.O. 12866 and is therefore not

a significant regulatory action, as

defined in the E.O. Similarly, EPA has

concluded that the finding of failure to

attain does not constitute a Federal

mandate within the meaning of the

Unfunded Mandates Act. Furthermore,

the Agency has certified that the

redesignation of the attainment status of

an area under section 107(d) of the CAA

does not have a significant economic

impact on a substantial number of small

entities under the Regulatory Flexibility

Act. See 46 FR 8709 (January 27, 1981).

Because the regulatory impact of

reclassification under section 188(b) of

the CAA is no different substantively

from that associated with designations,

such actions are also not expected to

have significant impacts on small

entities.

EPA wishes to emphasize, however,

that the reclassification of the Phoenix

area is only the first step in developing

a strategy to bring ambient

concentrations of PM10 in the area to

healthful levels. As with the State’s

moderate area SIP, which EPA approved

on April 10, 1995 (60 FR 18010),

development of a control strategy for the

State’s serious area SIP will involve an

assessment of the economic feasibility

of implementing any particular control

measure. If Arizona determines that a

measure cannot be implemented

because it is not economically feasible,

the State need only provide EPA with a

reasoned justification for that

determination. EPA believes there will

be sufficient opportunity for ADEQ and

other State agencies, local planning

agencies, the general public, and the

regulated community to assess the

economic impacts of control measure

implementation while they develop the

serious area SIP.

B. State Monitoring and Modeling Study

Comment: ADEQ claims that

reclassification is not necessary because

the State and local governments have

undertaken a study to better

characterize the sources contributing to

the nonattainment problem in the PPA.
Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Rules and Regulations 21375

The study will enable the State to define

the control measures necessary to attain

and maintain the PM10 NAAQS. As a

result the PPA will be able to

demonstrate attainment by

implementing reasonably available

control measures (RACM) rather than

BACM.

Response: EPA acknowledges the

difficulties in assessing the

contributions from various sources to

total PM10 concentrations and fully

supports the State’s efforts to accurately

identify those sources which have

caused the PPA to be in nonattainment

of the standards. Nonetheless, section

188(b)(2) of the CAA does not afford

EPA any discretion in determining

whether the area has in fact attained the

PM10 NAAQS by the statutorily

mandated attainment date. EPA

regulations generally require three years

of ambient monitoring data in order to

assess an area’s attainment status. See

40 CFR part 50, Appendix K. As

discussed in section I.D. of this notice,

based on air quality data collected

during the years 1992 through 1994,

EPA has determined that the PPA has

not attained the PM10 NAAQS.

Moreover, the State recently reported

two additional violations of the PM10

NAAQS at the Chandler monitoring site

in 1995. While for the purposes of this

rulemaking EPA is only considering air

quality data from 1992 through 1994,

these 1995 violations further support

EPA’s determination that PPA has failed

to attain the PM10 standard.

C. EPA’s Current Review of the PM10

NAAQS

Comment: Reclassification of the PPA

is untimely in light of the pending

revision of the PM NAAQS. State and

local agencies will have to spend

considerable resources to develop a plan

for a standard that may no longer be in

effect.

Response: Section 109(d)(1) of the

Clean Air Act requires that ‘‘not later

than December 31, 1980, and at fiveyear intervals thereafter’’ EPA review

and revise, if warranted, air quality

criteria and national ambient air quality

standards. EPA is currently under court

order to complete its review of the

particulate matter NAAQS by June 28,

1997.

This review may or may not result in

a replacement and/or revision of the

PM10 NAAQS. The Agency is currently

considering the addition of a new PM

NAAQS that targets fine particulate

matter, such as particles with an

aerodynamic diameter less than or equal

to a nominal 2.5 micrometers. However,

the Agency is also considering retaining

a PM10 standard. Although the PM

NAAQS review process is incomplete at

this time, recent epidemiologic studies

show consistent positive associations of

ambient PM exposure with adverse

health effects, including mortality and

morbidity. Given the significant health

effects associated with PM, vigorous

enforcement of the current PM10

requirements is critical to ensure

protection of the public health. Until a

revision of the NAAQS occurs, the

current NAAQS and the requirements

relating to them remain in force. In the

event that a new NAAQS is

promulgated, a transition policy that

addresses current requirements and

ensures protection of the public health

will be developed.

D. Air Quality Monitoring

Comment: There should be a more

detailed review of the circumstances

surrounding the location of the two

monitoring sites which recorded

exceedances to insure that the locations

are not anomalies improperly reflecting

local conditions. It would not be

appropriate to impose a classification

upon the entire region due to what may

be anomalies for just two sites out of

nine.

Response: In order to meet Federal

monitoring regulations, agencies which

operate air monitoring networks are

required to design these networks in

order to meet certain monitoring

objectives. These objectives are to

determine: 1) the highest concentrations

expected to occur in the area covered by

the network; 2) representative

concentrations in areas of high

population density; 3) the impact on

ambient pollution levels of significant

sources or source categories; and 4)

general background concentration

levels. See 40 CFR part 58, Appendix D.

Both the South Phoenix and Chandler

sites are located in order to measure

PM10 concentrations in areas of high

population density. The Maricopa

County Environmental Services

Department (MCESD) and ADEQ, the

agencies responsible for operating the

pollutant monitoring network in the

PPA, conduct an annual review of the

monitoring network as required by

Federal regulations. See 40 CFR part

58.26 and 40 CFR part 58, Appendix F.

EPA believes the South Phoenix and

Chandler monitoring stations are

correctly sited and meet all applicable

Federal requirements.

Comment: According to section 2.11

of the Quality Assurance Handbook for

Air Pollution Control, PM10 monitors

have a precision error of ±10% when

addressing the PM10 24 hour NAAQS.

Therefore, two of the recorded

violations, with readings below 165 μg/

m3, could be within the NAAQS when

this error variation is accounted for.

Response: EPA’s quality assurance

procedures establish minimum

acceptable operating limits for PM10

sampling equipment. The ±10% to

which the commenter refers is not

directly related to the final PM10

ambient concentration, but rather to the

air flow rate through the PM10 sampler.

The ambient concentration is calculated

from the particle mass collected on a

filter medium, the volume of air pulled

through the filter, and the amount of

time the sampler is operated. The ±10%

to which the commenter refers is the

acceptable range of deviation for the air

flow rate through the sampler.

Nevertheless, EPA recognizes the

validity of the commenter’s concern

regarding the ±10% threshold. However,

this 10% threshold is not an allowance

or a leeway to adjust data, rather it is a

limit which if exceeded alerts the field

or laboratory monitoring personnel to a

possible sample validity problem.

Readings beyond the 10% threshold can

mean heavy filter loading or decreases

in the sampler flow rate. Air flow rates

beyond this 10% threshold may

necessitate invalidating all samples

collected since the last sampler

calibration. See Quality Assurance

Handbook for Air Pollution Control,

section 2.11.3.4, Sample Validation and

Documentation.

Comment: According to EPA’s

Exceptional Event Guideline, high

winds are defined as an hourly speed of

greater than or equal to 30 mph or gusts

equal to or greater than 40 mph with

little or no precipitation. The western

regional climate center in Reno, Nevada

reported that November 20, 1992 was

the windiest day of the quarter in the

PPA with wind speeds up to 40 mph

and no precipitation. Therefore the

exceedance recorded on that date (156

μg/m3) should be classified as an

exceptional event. Furthermore, all of

the PM10 NAAQS violations in the PPA

were impacted by short term

construction activities. The Exceptional

Event Guideline states that construction

and demolition activities are

exceptional events.

Response: EPA has established

criteria and procedures to identify or

‘‘flag’’ data which may be affected by

‘‘exceptional events’’ in its ‘‘Guideline

on the Identification and Use of Air

Quality Data Affected by Exceptional

Events,’’ July 1986 (Guideline). Under

the flagging system, state and local air

pollution control agencies are

responsible for initially identifying and

documenting data influenced by

exceptional events. These agencies are

expected to develop the appropriate
21376 Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Rules and Regulations

background information necessary to

support a decision to flag an individual

piece of data. The agencies must then

submit the information to EPA for

concurrence. Flagging a piece of data or

data set does not exclude that data from

being used for nonattainment

designations or classifications. The

actual exclusion would only be allowed

if, as a result of a public review process,

the responsible government agency, in

this case EPA, determines that the data

are inappropriate for use in a specific

regulatory activity. Neither the MCESD

nor ADEQ requested that these data be

flagged as exceptional events, nor were

these data proposed to be excluded from

any specific regulatory action.

Notwithstanding the fact that the

State did not initiate the flagging

process, EPA would have evaluated

whether the exceedances in question

were affected by exceptional events had

the commenter provided documentation

demonstrating that they qualified as

such. There are basically two issues

which must be addressed in order to

determine whether an exceedance of the

NAAQS was due to an exceptional

event. First, there must be a link

between a specific PM10 generating

activity (e.g., forest or structural fire,

construction/demolition activity) and

the suspect data. Second, there must be

a determination that the activity is not

likely to recur.

Regarding high winds, the commenter

only referenced part of the definition in

the Guideline of a high wind event. The

definition in full is ‘‘hourly windspeed

of greater than or equal to 30 mph or

gusts equal to or greater than 40 mph,

with [little or] no precipitation. The

high wind condition with [little or] no

precipitation and dry soil must be

associated with a significant

contribution (estimated to be > 85% by

weight) of crustal material on the PM

sampling medium.’’ The commenter did

not provide any supporting information

on the type of particulate matter which

contributed to the PM10 exceedance on

November 20, 1992. Furthermore, no

information was provided to show that

this wind event was itself exceptional,

i.e. that it was not expected to recur.

As to construction activities, the

commenter again only sites a portion of

the definition of construction/

demolition activities that would qualify

as exceptional events. The Guideline

states that construction/demolition

activities that last for only a short period

of time, are within a reasonable distance

of the monitoring site and that are

implementing all reasonable control

measures may be flagged as exceptional

events. Flagged data should be limited

to sites that are classified as micro- or

middle-scale and downwind with

respect to the construction activity. The

Chandler monitoring site is classified as

a neighborhood scale site. See 40 CFR

part 58, Appendix D for an explanation

of the difference in spatial scales. As

with the high wind claim, the

commenter also did not address the

likelihood of the construction activity’s

recurrence. In the State’s approved

moderate area PM10 SIP, construction

activities are recognized as controllable

sources of PM10 and are now regulated

under Maricopa County Rule 310.

To summarize, the commenter did not

provide any supporting information or

data showing that the high winds or

construction activities did, in fact, have

a direct causal link to the PM10 NAAQS

exceedances or, if so, the magnitude of

the contribution from these sources. The

commenter simply asserted that the

high winds and construction activities

occurred. Furthermore, the commenter

did not address the likelihood of the

recurrence of these conditions. In fact,

the SIP development process is

intended to prevent exceedances from

anthropogenic activities such as

construction by providing for planning

by the State and local community to

help ensure such activities adequately

mitigate their contribution to PM10 air

quality problems.

Comment: The two locations where

violations were recorded are only two of

nine SLAMS sites and data from the

seven clean sites should also be

considered in deciding whether the PPA

should be reclassified. The recorded

violations are only 14%, 5%, and 4%

over the PM10 NAAQS and these values

are not ‘‘seriously’’ in excess of the PM10

NAAQS.

Response: Maricopa County’s nine

station network is only a representative

sample of the PPA’s air quality. These

nine stations cover 2,920 square miles.

Monitoring is only conducted on a one

in every six day schedule. Therefore, for

every one sample taken, there are five

days for which the air quality is

unknown. If there were other sites set

up to represent conditions similar to

those of the violating sites, it is possible

that more violations would have been

recorded.

Pursuant to 40 CFR, part 50,

Appendix K, an exceedance is defined

as a value which is measured above the

level of the 24 hour standard after

rounding to the nearest 10 μg/m3 (i.e.

values ending in 5 or greater are

rounded up). Therefore, had the highest

recorded values in the 1992 to 1994

period been 154 μg/m3 or less, the

concentrations would not have been

considered exceedances of the NAAQS.

However, the PM10 concentrations

recorded in the Phoenix area, 156 μg/

m3, 158 μg/m3, and 171 μg/m3, are above

that level and are therefore considered

exceedances.

Further, the claim that the

exceedances were not ‘‘seriously in

excess’’ of the NAAQS is without

validity. The PM10 NAAQS are set at a

level required to protect public health.

The standards are designated levels, not

ranges, of PM10 above which the air

quality is considered unhealthy. The

reclassification of the PPA is based on

the fact that violations of the standards

have occurred, and continue to occur,

rather than on the severity of the

violations.

E. National PM10 Standard

Comment: EPA should not apply a

nationwide PM10 standard to an arid

Southwest region such as the PPA.

Response: Section 109 of the CAA

requires EPA to promulgate primary and

secondary NAAQS for certain types of

air pollutants. These standards are

based on criteria which reflect current

scientific knowledge of the effect of

these pollutants on public health and

welfare.

On July 1, 1987 EPA promulgated the

NAAQS for PM10. 52 FR 24663 (July 1,

1987). While the types of sources and

the ability to control them differ from

one area of the country to another, the

human health effects of PM10 pollution

are the same whether one resides in

New York City or Phoenix. Therefore, in

order to protect human health, the

standards must be the same nationwide.

However, unlike the NAAQS, the SIP

development process is intended to

address variability in source types.

While the CAA does impose certain

minimum control requirements,

ultimately it is up to the state and the

affected local communities to choose

the particular control measures that best

address their unique air pollution

problem. In developing the control

measures, a state may consider the

economic and technological feasibility

of implementing a particular control

measure.

III. Today’s Final Action

EPA is today taking final action to

find that the PPA did not attain the

PM10 NAAQS by December 31, 1994,

the CAA attainment date for moderate

PM10 nonattainment areas. As a result of

this final finding, the PPA is reclassified

by operation of law as a serious PM10

nonattainment area.

IV. Executive Order (EO) 12866

Under E.O. 12866, 58 FR 51735

(October 4, 1993), EPA is required to

determine whether regulatory actions
Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Rules and Regulations 21377

are significant and therefore should be

subject to OMB review, economic

analysis, and the requirements of the

Executive Order. The Executive Order

defines a ‘‘significant regulatory action’’

as one that is likely to result in a rule

that may meet at least one of the four

criteria identified in section 3(f),

including, under paragraph (1), that the

rule may ‘‘have an annual effect on the

economy of $100 million or more or

adversely affect, in a material way, the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local, or tribal governments or

communities.’’

The Agency has determined that the

finding of failure to attain finalized

today would result in none of the effects

identified in section 3(f). Under section

188(b)(2) of the CAA, findings of failure

to attain and reclassification of

nonattainment areas are based upon air

quality considerations and must occur

by operation of law in light of certain air

quality conditions. They do not, in-andof-themselves, impose any new

requirements on any sectors of the

economy. In addition, because the

statutory requirements are clearly

defined with respect to the differently

classified areas, and because those

requirements are automatically triggered

by classifications that, in turn, are

triggered by air quality values, findings

of failure to attain and reclassification

cannot be said to impose a materially

adverse impact on State, local, or tribal

governments or communities.

V. Regulatory Flexibility

Under the Regulatory Flexibility Act,

5 U.S.C. § 601 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-for-profit enterprises, and

government entities with jurisdiction

over populations of less than 50,000.

As discussed in sections II.A. and IV

of this notice, findings of failure to

attain and reclassification of

nonattainment areas under section

188(b)(2) of the CAA do not in-and-ofthemselves create any new

requirements. Therefore, I certify that

today’s final action does not have a

significant impact on small entities.

VI. Unfunded Mandates

Under sections 202, 203 and 205 of

the Unfunded Mandates Reform Act of

1995 (Unfunded Mandates Act), signed

into law on March 22, 1995, EPA must

assess whether various actions

undertaken in association with

proposed or final regulations include a

Federal mandate that may result in

estimated costs of $100 million or more

to the private sector, or to State, local or

tribal governments in the aggregate.

EPA believes, as discussed above, that

the finding of failure to attain and

reclassification of the Phoenix Planning

Area are factual determinations based

upon air quality considerations and

must occur by operation of law and,

hence, do not impose any federal

intergovernmental mandate, as defined

in section 101 of the Unfunded

Mandates Act.

List of Subjects in 40 CFR Part 81

Environmental protection, Air

pollution control, Intergovernmental

relations, Particulate matter.

Dated: April 29, 1996.

Felicia Marcus,

Regional Administrator.

40 CFR part 81 is amended as follows:

PART 81—[AMENDED]

1. The authority citation for part 81

continues to read as follows:

Authority: 42 U.S.C. 7407, 7501–7515,

7601.

2. Section 81.303 is amended by

revising the table for Arizona—PM–10,

to read as follows:

§ 81.303 Arizona.

* * * * *

ARIZONA—PM–10

Designated Area

Designation Classification

Date Type Date Type

Cochise County:

Paul Spur/Douglas planning area ............................................................... 11/15/90 Nonattainment ...... 11/15/90 Moderate.

Township 23 South, Range 25 East (T23S, R25E):

T23S,R26E

T23S, R27E

T23S, R28E

T24S, R25E

T24S, R26E

T24S, R27E

T24S, R28E

Santa Cruz County:

Nogales planning area ................................................................................ 11/15/90 Nonattainment ...... 11/15/90 Moderate.

The portions of the following Townships which are within the State

of Arizona and lie east of 111° longitude:

T23S, R13E

T23S, R14E

T24S, R13E

T24S, R14E

Rillito planning area ..................................................................................... 11/15/90 Nonattainment ...... 11/15/90 Moderate.
21378 Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Rules and Regulations

ARIZONA—PM–10—Continued

Designated Area

Designation Classification

Date Type Date Type

Townships:

T11S, R9E

T11S, R10E

T11S, R11E

T11S, R12E

T12S, R8E

T12S, R9E

T12S, R10E

T12S, R11E

T12S, R12E

Pima County

Ajo planning area ........................................................................................ 11/15/90 Nonattainment ...... 11/15/90 Moderate.

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

R5W:

a. Sections 6–8

b. Sections 17–20, and

c. Sections 29–32

Maricopa and Pinal Counties

Phoenix planning area ................................................................................ 11/15/90 Nonattainment ...... 6/10/96 Serious.

The rectangle determined by, and including—

T6N, R3W

T6N, R7E

T2S, R3W

T2S, R7E

T1N, R8E

Yuma County:

Yuma planning area .................................................................................... 11/15/90 Nonattainment ...... 11/15/90 Moderate.

Townships:

T7S-R21W, R22W;

T8S-R21W, R22W, R23W, R24W

T9S-R21W, R22W, R23W, R24W, R25W;

T10S-R21W, R22W, R23W, R24W, R25W

Pinal and Gila Counties:

Hayden/Miami planning area ...................................................................... 11/15/90 Nonattainment ...... 11/15/90 Moderate.

Townships: T4S, R16E T5S, R16E T6S, R16E plus the portion of

Township T3S, R16E that does not lie on the San Carlos Indian

Reservation, and the rectangle formed by, and including, Townships

T1N, R13E

T1N, R15E

T6S, R13E

T6S, R15E

Gila County (part):

Payson: T10N, Sections 1–3, 10–15, 22–27, and 34–36 of R9E; T11N,

Sections 1–3, 10–15, 22- 27, and 34–36 of R9E; T10–11N, R10E;

T10N, Sections 4–9, 16–21, and 28–33 of R11E; T11N, Sections 4–9,

16–21, and 28–33 of R11E..

1/20/94 Nonattainment ...... 1/20/94 Moderate.

Mohave County (part):

Bullhead City: T21N, R20–21W, excluding Lake Mead National Recreation Area; T20N, R20- 22W; T19N, R21–22W excluding Fort Mohave

Indian Reservation..

1/20/94 Nonattainment ...... 1/20/90 Moderate.

Rest of State ............................................................................................... 11/15/90 Unclassifiable.

* * * * *

[FR Doc. 96–11736 Filed 5–9–96; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 180

[PP 9F3714/R2214; FRL–5354–1]

RIN 2070–AB78

Fenoxaprop-Ethyl; Extension of Study

Due Date and Time-Limited Tolerances

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: This rule extends the timelimited tolerances for fenoxaprop-ethyl

from April 12, l996 to November 1, l997.

This time extension was requested by

AgrEvo USA Company to coordinate a

delay in initiation of a repeat

oncogenicity study required to change

the interim (time-limited) tolerances,

required for the use of fenoxaprop-ethyl

in the culture of wheat, to permanent

tolerances. The originial petitioner was

Hoechst Celanese Corp. of North

Somerville, NJ 08876. In l994 Hoechst

Celanese Corp. and NOR-AM Chemical

formed a partnership Company, AgrEvo

USA Company; and AgrEvo USA