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Finding of State Implementation Plan Inadequacy; Arizona--Salt River Monitoring Site; Metropolitan Phoenix PM-10 Nonattainment Area
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: July 2, 2002 (Volume 67, Number 127)]
[Rules and Regulations]
[Page 44369-44371]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02jy02-11]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[AZ-076-SIP; FRL-7238-8]
Finding of State Implementation Plan Inadequacy; Arizona--Salt
River Monitoring Site; Metropolitan Phoenix PM-10 Nonattainment Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA finds that the state implementation plan (SIP) for the
Metropolitan Phoenix (Maricopa County), Arizona PM-10 nonattainment
area is substantially inadequate to attain the 24-hour particulate (PM-
10) air quality standard at the Salt River monitoring site, a small
subarea of the nonattainment area. As required by the Clean Air Act
upon a finding of SIP inadequacy, EPA is requiring that the State of
Arizona submit a SIP revision to correct the inadequacy.
EFFECTIVE DATE: August 1, 2002.
ADDRESSES: You can inspect a copy of the administrative record for this
action at EPA's Region IX office during normal business hours. See
address below.
This document, the proposal for this final rule, and information on
the PM-10 plans for the metropolitan Phoenix area are also available as
electronic files on EPA's Region 9 Web Page at http://www.epa.gov/
region09/air.
FOR FURTHER INFORMATION CONTACT: Frances Wicher, Office of Air Planning
(AIR-2), U.S. Environmental Protection Agency, Region 9, 75 Hawthorne
Street, San Francisco, California 94105. (415) 947-4155. Email:
wicher.frances@epa.gov.
SUPPLEMENTARY INFORMATION:
Note: In this document, ``we'', ``us'' and ``our'' refer to EPA.
``CAA or the Act'' refers to the Clean Air Act as amended in 1990
and subsequently. ``PM-10'' refers to particulate matter with a
diameter of 10 microns or less. ``24-hour standard'' refers to the
24-hour National Ambient Air Quality Standard for PM-10 established
at 40 CFR 50.6(a). ``SIP'' or ``plan'' refers to a state
implementation plan. ``ADEQ'' is the Arizona Department of
Environmental Quality. ``BACM'' and ``RFP'' are acronyms,
respectively, for best available control measure and reasonable
further progress.
I. Background to Today's Action
The Phoenix area is classified as a ``serious'' PM-10 nonattainment
area and violates both the annual PM-10 standard of 50 [mu]g/
m3 and the 24-hour standard of 150 [mu]g/m3. 40
CFR 50.6. Between 1997 and 2001, Arizona has made several SIP
submittals that collectively address the CAA's planning requirements
for serious PM-10 nonattainment areas for both PM-10 standards. We have
acted on these submittals in several rulemakings. For more background
on the Phoenix PM-10 SIP and our actions on it, please see 65 FR 19964,
19965 (April 13, 2000) and 66 FR 50252, 50253 (October 2, 2001) and the
Technical Support Documents for those actions.
In today's action, we are concerned with the Phoenix PM-10 SIP's
provisions for attaining the 24-hour standard. In May, 1997, ADEQ
submitted the Plan for Attainment of the 24-hour PM-10 Standard--
Maricopa County PM-10 Nonattainment Area, as a SIP revision. This plan,
known as the microscale plan, included attainment and RFP
demonstrations for the 24-hour PM-10 standard at the Salt River air
quality monitoring site as well as three other ``microscale''
monitoring sites in the Phoenix area (Maryvale, Gilbert, and West
Chandler). The demonstration for the Salt River site showed that, with
additional controls adopted by the local air quality agency, the
Maricopa County Environmental Services Department, attainment at the
site would occur by May 1998. We approved the attainment and RFP
demonstrations for the Salt River site and Maricopa County's controls
on August 4, 1997. See 62 FR 41856. Since the microscale plan, Arizona
has made no other submittals that address the 24-hour exceedances at
the Salt River site.
According to its approved attainment demonstration, the Salt River
site should not have violated the 24-hour PM-10 standard after May,
1998. See 62 FR 31026, 31035. The site, however, continues to violate
the standard.\1\ Based on data recorded in EPA's Aerometric Information
Retrieval System (AIRS), the Salt River monitor had 51 expected
exceedances in 1999, 43 expected exceedances in 2000, and 19 expected
exceedances through 3 quarters in 2001 or an average of at least 37
expected exceedances per year over the past three years. The 24-hour
PM-10 standard is violated when the expected number of exceedances
averages more than 1 per year over a three year period. See 40 CFR
50.6(a). Thus the continuing violations at the Salt River monitor
clearly show that the existing attainment demonstration for the site is
faulty.
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\1\ The Salt River site, approximately 32 square miles in area
or about 1 percent of the 2880 square mile Phoenix nonattainment
area, is located in an industrial area and its 24-hour violations
are most likely due in large part to the industrial sources that
surround it. This is in marked contrast to other monitoring sites in
the rest of the Phoenix nonattainment area where 24-hour exceedances
are almost exclusively due to windblown fugitive dust.
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To assure that SIPs provide for timely attainment, section
110(k)(5) authorizes EPA to find that a SIP is substantially inadequate
to meet an CAA requirement, and to require (``call for'') the State to
submit, within a specified period not to exceed 18 months, a SIP
revision to correct the inadequacy. This requirement for a SIP revision
is known as a ``SIP call.''
On April 18, 2002 at 67 FR 19148, we published our proposed finding
that the Arizona SIP is inadequate to assure attainment of the 24-hour
PM-10 standard at the Salt River Site. Based on this proposed finding,
we also proposed a SIP call that would require Arizona to revise its
SIP to correct the deficiency and submit the corrections no later than
18 months after the publication of the final rule. We requested
comments on our proposals and provided a 30-day comment period, which
closed on May 20, 2002. We received no comments.
II. The Inadequacy Finding and Call for a SIP Revision
A. Inadequacy Finding and SIP Call
Because the attainment demonstration approved into the Phoenix area
PM-10 SIP in 1997 is faulty and there has been no substitute attainment
demonstration submitted to date, we find that the
[[Page 44370]]
Phoenix area PM-10 SIP is substantially inadequate to attain the 24-
hour PM-10 standard at the Salt River site. Therefore, pursuant to CAA
section 110(k)(5), we require the State of Arizona to submit a revision
to the Phoenix area SIP that corrects this deficiency and complies with
all other applicable CAA requirements as described below.
B. Submittal Schedule
We set the date for submitting the revisions to the Salt River
attainment demonstration and related provisions described below as 18
months after the effective date of the final rule, or February 2, 2004.
C. SIP Requirements
To fully respond to this SIP call for the Salt River attainment
demonstration, Arizona will need to submit the following:
(a) A demonstration based on air quality modeling that the plan
will provide for attainment no later than December 31, 2006 at the Salt
River site. CAA sections 189(b)(1)(A) and 188(e).
(b) Provisions for implementing BACM as expeditiously as
practicable for all sources or source categories that contribute
significantly to exceedances of the 24-hour PM-10 standard in the Salt
River area. CAA section 189(b)(1)(B).\2\ In the SIP revision, Arizona
need only provide for the implementation of BACM for those significant
sources or source categories for which we have not already approved
BACM.
(c) A demonstration that the revised SIP includes, and provides for
expeditious implementation of, the most stringent measures (MSM) found
in the implementation plan or achieved in practice that are feasible
for the Phoenix nonattainment area for each significant source or
source category for which we have not already approved a MSM showing.
(d) A demonstration that the revised SIP provides for reasonable
further progress in the Salt River area. The SIP revision must also
provide for quantitative milestones for the Salt River area which are
to be achieved every 3 years and which are consistent with the RFP
demonstration. To be consistent with the serious area plan, the
milestone dates should be December 31, 2003 and December 31, 2006.
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\2\ Under CAA section 189(b)(1)(B), BACM is to be implemented no
more than 4 years after an area is reclassified from moderate to
serious for PM-10, or June 10, 2000 for the Phoenix area. Because
this deadline has now passed, the applicable deadline is ``as
expeditiously as practicable'' under Delaney v. EPA, 898 F.2d 687
(1990).
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The SIP revision must also meet the general requirements applicable
to all SIPs including reasonable notice and public hearing under
section 110(l), necessary assurances that the implementing agencies
have adequate personnel, funding and authority under section
110(a)(2)(E)(i) and 40 CFR 51.280 to carry out the SIP; and the
description of enforcement methods for the adopted controls as required
by 40 CFR 51.111.
Finally, any controls adopted to demonstrate attainment at the Salt
River site or to meet the BACM or MSM requirements must be applied to
all similar sources in the Phoenix nonattainment area.
If Arizona fails to submit the required SIP revisions in response
to a final SIP call, we are required to issue a finding that the State
failed to make a required SIP submittal under section 179(a), a finding
which starts an 18 month clock for the implementation of sanctions
under the CAA and a two year clock for a federal implementation plan.
See 40 CFR 52.31.
VI. Administrative Requirements
The Office of Management and Budget has exempted this regulatory
action from Executive Order 12866, Regulatory Planning and Review.
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a
significant regulatory action under 12866.
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. This rule is not subject to
Executive Order 13045 because it is not an economically significant
regulatory action under Executive Order 12866.
Executive Order 13132, ``Federalism'' (64 FR 43255, August 10,
1999) requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined to include
regulations that have ``substantial direct effects on the States, on
the relationship between the national government and the States, or on
the distribution of power and responsibilities among the various levels
of government.'' Under Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs on the States, and that is not required by
statute, unless the Federal government provides the funds necessary to
pay the direct compliance costs incurred by State and local
governments, or EPA consults with State and local officials early in
the process of developing the proposed regulation. This SIP call is
required by the Clean Air Act because the current SIP is substantially
inadequate to attain the 24-hour PM-10 standard. Arizona's direct
compliance costs will not be substantial because the SIP call requires
Arizona to submit only those revisions necessary to address the SIP
deficiency and applicable Clean Air Act requirements. Finally, EPA has
consulted with the State and local agencies prior to making this SIP
call.
This rule will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government, as specified in Executive Order 13132, because it
is in keeping with the relationship and the distribution of power and
responsibilities between EPA and the States as established by the Clean
Air Act. Thus, the requirements of section 6 of the Executive Order do
not apply to this rule.
Executive Order 13175, ``Consultation and Coordination with Indian
Tribal Governments'' (59 FR 22951, November 6, 2000), requires EPA to
develop an accountable process to ensure ``meaningful and timely input
by tribal officials in the development of regulatory policies that have
tribal implications.'' ``Policies that have tribal implications'' is
defined in the Executive Order to include regulations that have
``substantial direct effects on one or more Indian tribes, on the
relationship between the Federal government and the Indian tribes, or
on the distribution of power and responsibilities between the Federal
government and Indian tribes.'' Executive Order 13175 does not apply to
this rule because this rule will not effect any tribal government or
any tribal lands and thus will have no tribal implications.
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA)
generally requires an agency to conduct a regulatory flexibility
analysis of any proposed rule subject to notice and
[[Page 44371]]
comment rulemaking requirements unless the agency certifies that the
rule, if finalized, will not have a significant economic impact on a
substantial number of small entities. For the reasons described in the
proposal, EPA certified that this action does not have a significant
impact on a substantial number of small entities. See 67 FR 19148,
19151.
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), 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 private sector, of $100
million or more in any one year. Under section 205, EPA must select the
most cost-effective and least burdensome alternative that achieves the
objectives of the rule and is consistent with statutory requirements
for any rule requiring a budgetary impact statement. Section 203
requires EPA to establish a plan for informing and advising any small
governments that may be significantly or uniquely impacted by the rule.
EPA has determined that this rule does not include a Federal
mandate that may result in estimated costs of $100 million or more in
any one year to either State, local, or tribal governments in the
aggregate, or to the private sector and has therefore not prepared a
budgetary impact statement. This proposed rule, if finalized, will not
significantly or uniquely impact any small governments.
Section 12 of the National Technology Transfer and Advancement Act
(NTTAA) of 1995 requires Federal agencies to evaluate existing
technical standards when developing a new regulation. To comply with
NTTAA, EPA must consider and use ``voluntary consensus standards''
(VCS) if available and applicable when developing programs and policies
unless doing so would be inconsistent with applicable law or otherwise
impractical.
In making a finding of SIP deficiency, EPA's role is to review
existing information against previously established standards (in this
case, what constitutes a violation of the 24-hour PM-10 standard). In
this context, there is no opportunity to use VCS. Thus, the
requirements of NTTAA section 12(d) (15 U.S.C. 272 note) do not apply
to this rule.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by September 3, 2002. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, particulate matter.
Dated: June 19, 2002.
Keith Takata,
Acting Regional Administrator, Region IX.
[FR Doc. 02-16271 Filed 7-1-02; 8:45 am]
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