Approval and Promulgation of Implementation Plans; Arizona Maricopa County PM-10 Nonattainment Area; Serious Area Plan for Attainment of the PM-10 Standards

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: July 25, 2002 (Volume 67, Number 143)]
[Rules and Regulations]
[Page 48717-48739]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25jy02-18]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[AZ092-002; FRL-7141-3]

Approval and Promulgation of Implementation Plans;
Arizona Maricopa County PM-10 Nonattainment Area; Serious
Area Plan for Attainment of the PM-10 Standards

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.

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SUMMARY: EPA is approving the serious area particulate matter
(PM-10) plan for the Maricopa County portion of the metropolitan
Phoenix (Arizona) PM-10 nonattainment area. We are also granting
Arizona's request to extend the Clean Air Act deadline for attaining
the annual and 24-hour PM-10 standards in the area from 2001 to
2006. Finally, we are approving Maricopa County Environmental Services
Department's fugitive dust rules, Maricopa County's Residential
Woodburning Restrictions Ordinance, and commitments by Maricopa County
jurisdictions to implement PM-10 controls.

EFFECTIVE DATE: August 26, 2002.

FOR FURTHER INFORMATION CONTACT: Frances Wicher, Office of Air Planning
(AIR-2), U.S. Environmental Protection Agency, Region 9, 75
Hawthorne Street, San Francisco, California 94105. (415)
947-4155, email: wicher.frances@epa.gov.
This document and the Technical Support Document are also available
as electronic files on EPA's Region 9 Web Page at http://www.epa.gov/
region09/air.

SUPPLEMENTARY INFORMATION: Throughout this document "we,"
"us," and "our" means EPA. This supplementary
information is organized as follows:

I. Summary of Today's Actions
II. The Serious Area PM-10 Plan for the Phoenix Area
III. Proposals for and Information Related to Today's Actions
A. The Proposals for Today's Actions
B. Already-Approved Elements of the Phoenix Serious Area
PM-10 Plan
C. Effect of Today's Actions on the 1998 Federal PM-10
Plan for the Phoenix Area
D. Clean Air Act Sanctions in the Phoenix Area
E. EPA's Policies on Approving Serious Area PM-10 Plans
and Granting Attainment Date Extensions
IV. Response to Comments on the Proposed Actions
A. Comments on EPA's Policy on Approving Serious Area
PM-10 Plans and Granting Attainment Date Extensions
B. Comments on EPA's Detailed Evaluation of the Phoenix Serious
Area PM-10 Plan
V. Final Actions
A. Approval of the Serious Area Plan
B. Extension of the Attainment Date
C. Approvals of Rules and Commitments
D. Correction of Previous SIP Disapprovals
VI. Administrative Requirements

I. Summary of Today's Actions

We are approving the serious area state implementation plan (SIP)
for attainment of the annual and 24-hour PM-10 standards in the
metropolitan Phoenix (Maricopa County), Arizona, area. This action is
based on our determination that this plan complies with the Clean Air
Act's (CAA) requirements for attaining the PM-10 standards in
serious PM-10 nonattainment areas such as the metropolitan
Phoenix area.
Specifically, we are approving the following elements of the plan
as they address both the 24-hour and annual PM-10 standards:
· The base year emissions inventory of PM-10
sources;
· The demonstration that the plan provides for
implementation of reasonably available control measures (RACM) and best
available control measures (BACM) for all source categories that
contribute significantly to PM-10 standard violations;
· The demonstrations that attainment by the CAA deadline
of December 31, 2001 is impracticable;
· The demonstrations that attainment will occur by the
most expeditious alternative date practicable, in this case, December
31, 2006;
· The demonstration that the plan provides for
reasonable further progress and quantitative milestones;
· The demonstration that the plan includes to our
satisfaction the most stringent measures found in the implementation
plan of another state or are achieved in practice in another state and
can feasibly be implemented in the area;
· The demonstration that major sources of PM-10
precursors such as nitrogen oxides and sulfur dioxide do not contribute
significantly to violations of the PM-10 standards;
· Contingency measures; and
· The transportation conformity mobile source emissions
budget.
We are also approving Maricopa County's fugitive dust rules, Rules
310 and 310.01, and its residential woodburning restriction ordinance
as well as commitments by the local jurisdictions in the Phoenix area
to implement control measures.
Finally, we are granting Arizona's request to extend the attainment
date for both the annual and 24-hour PM-10 standards from
December 31, 2001 to December 31, 2006.
With today's action, EPA has now approved all elements of the
serious area PM-10 plan for the Phoenix area. Today's final
approvals also correct disapprovals of previous Phoenix PM-10
plans that resulted in the imposition of one CAA sanction in the
Phoenix area and a clock running for the imposition of another. With
these approvals, the sanction is lifted and the clock stopped.
This preamble summarizes our actions on the Phoenix serious area
plan, gives some background to this action, and provides responses to
the most significant comments we received on the proposals for this
final action. We have not repeated the concise evaluation of the plan
that we provided in the two proposals for today's action. We refer the
reader to these proposals for this evaluation. See the annual standard
proposal at 65 FR 19964 (April 13, 2000) and the 24-hour standard
proposal at 66 FR 50252 (October 2, 2001). Our complete evaluation can
be found in our technical support document (EPA TSD) that accompanies
this final action. The EPA TSD also includes our full responses to all
comments received on both proposals. The EPA TSD can be downloaded from
our website or obtained by calling or writing the contact person listed
above.

II. The Serious Area PM-10 Plan for the Phoenix Area

Arizona has made several submittals to address the CAA requirements
for serious PM-10 nonattainment area plans in the Phoenix area.
These submittals include the 1997 Microscale plan,\1\ the 1997 BACM
submittal,\2\ the 2000 Revised Maricopa Association of Governments
(MAG) plan,\3\ the 2001 Best Management Practices (BMP) submittal (BMP
TSD),\4\ and a number of

[[Page 48719]]

rules.\5\ These submittals collectively comprise the full serious area
PM-10 plan for the Phoenix area.
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\1\ Plan for Attainment of the 24-hour PM-10
Standard Maricopa County PM-10 Nonattainment Area,
Arizona Department of Environmental Quality (ADEQ), May, 1997,
submitted May 9, 1997, approved in part and disapproved in part on
August 3, 1997 (62 FR 41856).
\2\ Serious Area Committed Particulate Control Measures
for PM-10 for the Maricopa County Nonattainment Area and
Support Technical Analysis, MAG, December 1997, submitted December
11, 1997.
\3\ Revised Maricopa Association of Governments 1999
Serious Area Particulate Plan for PM-10 for the Maricopa
County Nonattainment Area, February 2000, submitted February 16,
2000. On January 8, 2002, Arizona submitted revisions to the
Maricopa County's commitments to improve its fugitive dust rule
which were in this plan.
\4\ Maricopa County PM-10 Serious Area State
Implementation Plan Revision, Agricultural Best Management Practices
(BMP), ADEQ, June 2000, submitted on June 13, 2001.
\5\ These include the revised Maricopa County
Environmental Services Department (MCESD) Rule 310, Fugitive Dust
Sources (adopted February 16, 2000) and Rule 310.01, Fugitive Dust
from Open Areas, Vacant Lots, Unpaved Parking Lots, and Unpaved
Roadways (adopted February 16, 2000), both submitted on March 2,
2000; the revised Maricopa County Residential Woodburning
Restrictions Ordinance (adopted November 17, 1999) submitted on
January 28, 2000; and the Agricultural BMP General Permit Rule
submitted on July 11, 2000, approved October 11 2001 (66 FR 51869).
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The MAG plan is the primary document for the serious area plan. It
contains the base year inventory, the BACM demonstrations for all
significant source categories (except agriculture) for both standards,
the demonstration that attainment of both standards by 2001 is
impracticable, the demonstration that attainment of the annual standard
and the 24-hour standard (at all but four sites addressed by the
microscale plan) will occur as expeditiously as practicable, the
reasonable further progress (RFP) demonstration and quantitative
milestones for the annual standard, contingency measures for the annual
standard, the transportation conformity budget, and the request and
supporting documentation including the most stringent measure
analysis (except for agriculture) for an attainment date
extension for both standards under CAA section 188(e).
The BMP TSD updates the MAG plan to reflect the State's May, 2000
adoption of the agricultural general permit rule to control PM-10
from agricultural sources in Maricopa County. It includes a background
document which provides the BACM and most stringent measure
demonstrations for agricultural sources for both standards, the final
demonstration of attainment and RFP for the 24-hour standard at two
monitoring sites, quantitative milestones for the 24-hour standard, and
revisions to the contingency measure provisions for both standards. It
also includes documentation quantifying emission reductions from the
agricultural general permit rule and documentation related to
implementing this rule. The BMP TSD was prepared by ADEQ.
The 1997 BACM submittal contains the initial commitments by the
cities and towns in the Maricopa County portion of the Phoenix
nonattainment area to implement BACM within their jurisdictions. These
commitments were resubmitted in the revised MAG plan.
The Microscale plan is a serious area PM-10 plan that
includes BACM, RFP, and attainment demonstrations for the 24-hour
PM-10 standard at four Phoenix area monitoring sites: Salt River,
Maryvale, Gilbert, and West Chandler. It was prepared and submitted by
ADEQ in 1997 as a component of the overall serious area PM-10
plan for the Phoenix area.\6\
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\6\ A complete history of the Microscale plan, including
the reasons for its development, can be found in the proposal and
final actions for that plan and in proposal for the 24-hour
standard. See 62 FR 31025 (June 6, 1997), 62 FR 41856 (August 4,
1997) and the 24-hour standard proposal at 50254.
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III. Proposals for and Information Related to Today's Actions

A. The Proposals for Today's Actions

Two proposals preceeded today's final action. The first proposal
was published on April 13, 2000 (65 FR 19964) and addresses the Phoenix
serious area plan's provisions for attaining the annual standard. The
initial comment period for this proposal was 60 days but was extended
twice and finally closed on July 27, 2000. We received 14 comments on
this proposal from both public and private groups and from numerous
private citizens.
The second proposal was published on October 2, 2001 (66 FR 50252)
and addresses the Phoenix serious area plan's provisions for attaining
the 24-hour standard and contingency measures for both PM-10
standards. In this second proposal, we also revised and reproposed
several findings from the annual standard notice. These reproposals
were necessary because of SIP submittals made by Arizona after the
April 2000 proposal. The 30-day comment period for this proposal ended
on November 1, 2001. We received one comment letter.

B. Already-Approved Elements of the Phoenix Serious Area PM-10
Plan

Two important elements of the metropolitan Phoenix serious area
PM-10 plan have already been approved. These elements were
submitted as either part of the Microscale plan or the BMP general
permit rule and its TSD.
We approved the Microscale plan in part and disapproved the plan in
part on August 4, 1997. We approved provisions for implementing BACM
for 3 of the 8 source categories found to be significant contributors
to 24-hour exceedances in the Phoenix area and disapproved them for 5
others. We also approved the attainment and RFP demonstrations for the
Salt River and Maryvale sites because the Mircoscale plan demonstrated
expeditious attainment at these sites but disapproved these
demonstrations for the West Chandler and Gilbert sites because the plan
did not demonstrate attainment at them. Except for our findings related
to the implementation of BACM, we have not reevaluated and are not
approving again those 24-hour provisions already approved as part of
our actions on the Microscale plan.\7\
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\7\ According to the approved serious area plan attainment
demonstration in the Microscale plan, the Salt River site should not
have violated the 24-hour PM-10 standard after May, 1998. The
site, however, continues to violate the standard. Because there is
already an approved serious area plan attainment demonstration, the
remedy under the CAA for correcting this demonstration is for EPA to
issue a formal request to the State to revise it SIP pursuant to
section 110(k)(5), a process known as a "SIP call." We
will be proposing that SIP call soon. However, because the elements
of the Phoenix serious area plan that we are approving today do not
address the attainment of the 24-hour standard at the Salt River
site, the issues with the site's attainment demonstration do not
affect today's action.
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On October 11, 2001, we approved the State's agricultural BMP
general permit rule and found that it provided for the implementation
of RACM for the agriculture source category. See 66 FR 51869. We are
today finding that the rule also provides for the implementation of
BACM and meets the most stringent measure requirement in CAA section
188(e). These latter findings are in addition to and not in
substitution for the October 11, 2001 RACM finding.
With today's action and these previous approvals, we have now
approved all elements of the Phoenix serious area PM-10 plan.

C. Effect of Today's Actions on the 1998 Federal PM-10 Plan for
the Phoenix Area

On August 3, 1998, we promulgated a moderate area PM-10
federal implementation plan (FIP) for the Phoenix area. In the FIP, we
included a rule for controlling fugitive dust from vacant lots, unpaved
parking lots, and unpaved roads. See 40 CFR 52.128 (modified, December
21, 1999). We also included a commitment to adopt and implement RACM
for agricultural source categories. See 40 CFR 52.127 as published at
63 FR 41326, 41350 (August 3, 1998) (withdrawn at 64 FR 34726 (June 29,
1999)). With the Federal fugitive dust rule and commitment and already
approved State and local controls, we demonstrated that the Phoenix
area had in place RACM on all significant source categories, that the
area would make reasonable further progress toward attainment but that
attainment by 2001 was impracticable. See 63 FR 41326.
On June 29, 1999, we replaced the federal commitment to develop
agricultural controls in the FIP with a

[[Page 48720]]

State commitment to adopt best management practices for the
agricultural sources. 64 FR 34726.
Today's actions do not withdraw or otherwise modify the
demonstrations in the FIP or the federal fugitive dust rule.

D. Clean Air Act Sanctions in the Phoenix Area

In the 1998 FIP, we also disapproved the RACM and attainment
demonstrations for the annual PM-10 standard in the 1991 MAG
moderate area PM-10 plan. See 63 FR 41326 (August 3, 1998,
effective September 2, 1998). Under CAA section 179(a), once we
disapprove a SIP provision because it fails to meet a CAA requirement,
a State has 18 months from the effective date of the disapproval to
correct the deficiency before the first of two sanctions goes into
place. If the state still has not corrected the deficiency within 24
months of the effective date of the disapproval, the second sanction
goes into place.\8\
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\8\ The two CAA sanctions are a limitation on certain
highway approvals and funding and an increase in the emissions
offset ratio to 2 to 1 for any major new stationary source or major
modification. See CAA section 179(b). Our sanctions regulations
provide that the first sanction to be imposed is the offset ratio
unless we have established at the time of the disapproval that the
highway sanction will be first. 40 CFR 52.31(d).
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On March 2, 2000, before Arizona could submit and we could act to
approve substitute RACM and attainment demonstrations, the 18-month
clock expired and the 2:1 offset sanction went into place in the
Phoenix area. The second clock for the highway funding limitations was
set to expire on September 2, 2000.
Under section 179(a) and our sanctions regulations at 40 CFR
52.31(d)(1), we must approve a SIP revision that corrects the
deficiencies to permanently end the sanctions clocks and lift any
imposed sanctions. However, we may temporarily stay the clocks and any
imposed sanctions if we have proposed to approve a SIP revision that
corrects the deficiencies and have issued an interim final
determination that the State has corrected the deficiencies. 40 CFR
52.31(d)(2)(i).
We proposed to approve the RACM and attainment demonstrations for
the annual standard on April 13, 2000. 65 FR 19964. In a rule published
concurrently with that proposal, we issued an interim final
determination that stayed both the offset sanction and the clock
running on the highway sanctions. 65 FR 19992.
With today's action, we are fully approving the State's substitute
RACM and attainment demonstrations for the annual standard. These full
approvals correct the deficiencies that resulted in the disapproval and
permanently end the offset sanction and stop the clock for the highway
sanctions.
The serious area plan for the Phoenix area was due on December 10,
1997; however, Arizona submitted only a partial plan. On February 6,
1998, we made a finding that the State had failed to submit a required
SIP (published on February 25, 1998 at 63 FR 9423). This finding also
started sanctions clocks and a two-year clock under CAA section 110(c)
for EPA to promulgate a substitute federal implementation plan if the
State did not have a fully approved one.
On July 8, 1999, Arizona submitted the full serious area plan, and
on August 4, 1999, we found the plan complete. This finding stopped the
sanction clocks for failure to submit; however, it did not stopped the
FIP clock. Under section 110(c), the FIP clock continues until we
approve the full serious area plan. Today's action approves the plan
and ends our obligation to promulgate a serious area PM-10 FIP
for the Phoenix area.

E. EPA's Policies on Approving Serious Area PM-10 Plans and
Granting Attainment Date Extension

We have issued a General Preamble, 57 FR 13498 (April 16, 1992) and
57 FR 18070 (April 28, 1992), and Addendum to the General Preamble
("Addendum"), 59 FR 41998 (August 16, 1994), describing our
preliminary views on how we intend to review SIPs submitted to meet the
Clean Air Act's requirements for PM-10 plans. The General
Preamble mainly addresses the requirements for moderate areas and the
Addendum, the requirements for serious areas.
In the proposal for the 24-hour standard, we also provided our
preliminary interpretation of and policy on granting an extension of
the attainment date under CAA section 188(e). We are finalizing this
extension policy today only as it relates specifically to our action on
the attainment date extension requested by the State of Arizona for the
Phoenix area.

IV. Response to Comments on the Proposed Actions

The following are our responses to the most significant comments
that we received on the proposals for today's actions. In section 7 of
the EPA TSD, we provide more detailed responses to these comments as
well as responses to all comments received. A copy of the EPA TSD may
be downloaded from our website or obtained by writing or calling the
contact listed above.

A. Comments on EPA's Policies for Approving Serious Area PM-10
Plans and Granting Attainment Date Extensions

Comment: EPA interprets the CAA to not require a state to apply
BACM to any source or source category that it has demonstrated to be de
minimis. See 59 FR 41998, 42011 (August 16, 1994). In its July 2000
comments on the annual standard proposal, ACLPI disagrees that EPA can
exempt de minimis sources from the Act's BACM requirement. ACLPI argues
that there are no exceptions to the Act's requirement that serious area
plans include "provisions to assure that the best available
control measures for the control of PM-10 shall be
implemented." ACLPI incorporates by reference its arguments in
its Brief for the Petitioners in Ober v. Whitman (9th Cir., No.
98-71158) (Ober II) at pp. 21-19, noting that although Ober
II involves a challenge to our exemption of de minimis sources from the
RACM requirement, the same reasoning applies to invalidate the BACM
exemption as well.
Response: Ober II was a challenge to our 1998 PM-10 moderate
area FIP for the Phoenix area. In the FIP, we exempted from the RACM
requirement, source categories with de minimis impacts on PM-10
levels. We established a de minimis threshold of 1 µg/m\3\ for the
annual standard and 5 µg/m\3\ for the 24-hour standard, initially
taking these thresholds from the new source review (NSR) program for
attainment areas. We showed that these were the correct thresholds for
determining which source categories were de minimis for the RACM
requirement by showing that the application of RACM on the de minimis
source categories would not make the difference between attainment and
nonattainment by the applicable attainment deadline. See 63 FR 41326,
41330 (August 3, 1998). In Ober II, ACLPI challenged our ability to
exempt de minimis source categories from the RACM requirement and the
specific thresholds that we used.
In March, 2001 (well after the close of the comment period on the
annual standard proposal), the 9th Circuit issued its opinion in Ober
II. Ober v. Whitman, 243 F.3d 1190 (9th Cir. 2001). The court held that
we have the power to make de minimis exemptions to control requirements
under the Clean Air Act and that our use of the de minimis levels from
the NSR program is appropriate. In addition, the Court determined that
it is appropriate for us

[[Page 48721]]

to use, as a criterion for identifying de minimis sources, whether
controls on the sources would result in attainment by the attainment
deadline. Ober II at 1198
In finding that EPA had the authority to exempt de minimis source
categories of PM-10 from CAA control requirements, the Court
wrote:

Courts have refused to allow de minimis exemptions where the
statutory language does not allow it. * * * There is no
explicit provision in the Clean Air Act prohibiting the exemption
from controls for de minimis sources of PM-10 pollution. Nor
is the statutory language uncompromisingly rigid. The Act provides
that a plan must include "reasonably" available control
measures to bring the area into attainment unless attainment is
"impracticable." Those terms allow for the exercise of
agency judgment. * * * We conclude that EPA, in
discharging its duty to enforce the Act, is permitted under
[Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984)]
to exempt de minimis sources of PM-10
from pollution controls.

Ober II at 1194 (internal cites and quotes omitted).

The Court's reasoning is equally applicable to the BACM
requirement. Like the RACM requirement, there is no explicit provision
in the Act prohibiting the exemption from the BACM requirement for de
minimis sources of PM-10 pollution. Nor is the language in
section 189(b)(1)(B) requiring the implementation of BACM
"uncompromisingly rigid." Like RACM, the Act and EPA policy
provide that a PM-10 plan must include the "best"
available control measures to bring the area into attainment unless
attainment is "impracticable." The term
"best" no less than the term
"reasonably" allows for the exercise of agency
judgment.
In Ober II, the Court also upheld the procedures and criteria we
used to determine what constituted a de minimis source or source
category for RACM. Ober II at 1198. We have applied exactly the same
procedures and criteria for BACM. For BACM, we proposed the same NSR
thresholds as a starting point for determining what constitutes a de
minimis source category. See 24-hour standard proposal at 50281. We
also required the State to demonstrate that its identified de minimis
sources are in fact de minimis by showing that controls on them would
not make the difference between attainment and nonattainment by the
applicable deadline. See 24-hour standard proposal at 50281.
Finally, we note that we invoke a de minimis exemption from the
Act's general but open-ended control requirements like RACM, BACM, and
MSM as a means of ensuring that states focus their always limited
resources on the controls most likely to result in real air quality
benefits. It is more likely to harm air quality than to help it if
these limited resources are diverted away from more substantive
measures into the adoption and implementation of measures with trivial
impacts.
Nowhere is the need to concentrate resources on the most
significant sources more necessary then in large urban areas dominated
by PM-10 fugitive dust sources, such as the metropolitan Phoenix
area. Adequate controls in these types of areas require very large
investments of both financial and human resources because of the number
of sources and the type of needed controls.\9\ As the court has
recognized in Alabama Power Co. v. Costle, 636 F.2d 323, 360 (D.C.Cir.
1979), "[c]ourts should be reluctant to apply the literal terms
of a statute to mandate pointless expenditures of effort.
* * * The ability * * * to exempt de minimis
situations from a statutory command is not an ability to depart from
the statute, but rather a tool to be used in implementing the
legislative design." Cited in Ober II at 1194.
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\9\ There are literally thousands of sources subject to
fugitive dust controls in the Phoenix area, including constructions
sites, agricultural fields, vacant lots, unpaved roads, and paved
roads. For example, MCESD issued 2500 construction permits in 1999;
we mailed 50,000 letters to owners of vacant lots as part of our
1999 outreach on the PM-10 FIP. Effective fugitive dust
control from many of these sources requires either an ongoing and
extensive compliance and enforcement presence or large capital
expenditures (e.g., paving unpaved roads, purchasing and operating
PM-10 street sweepers).
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Comment: In its July 2000 comments on the annual standard proposal,
ACLPI argues that our de minimis exception violates the Act's central
mandate for attainment of the PM-10 standards by December 31,
2001 or as expeditiously as possible thereafter because it allows us
and the states to eschew otherwise available control measures based on
an arbitrary de minimis test even if the aggregate effect of
implementing controls on all "de minimis" sources would
hasten attainment. It further comments that even if the de minimis
exception is allowed, the thresholds set by EPA are arbitrary because
they were not based on actual PM-10 conditions in the
nonattainment area, but on levels borrowed from the wholly unrelated
new source review (NSR) program.
Response: ACLPI misstates the scope of the BACM de minimis
exemption. We do not consider a source category or groups of source
categories to be de minimis if applying BACM to it or them would
meaningfully expedite attainment in areas demonstrating attainment by
December 31, 2001 or would make the difference between attainment and
nonattainment by December 31, 2001 in areas requesting an extension.
See 24-hour standard proposal at 50281 and Addendum at 42011.
Under our de minimis policy, whether the NSR thresholds are
appropriate for an area depends on the specific facts of that area's
PM-10 nonattainment problem, that is, it depends on the actual
PM-10 conditions in the nonattainment area. We do not accept the
NSR thresholds as the correct de minimis thresholds without first
requiring a conclusive showing that they do not adversely affect the
area's ability to show expeditious attainment. See Addendum at 42011.
We used these NSR thresholds in our 1998 FIP. ACLPI raised the same
objections to their use there for the RACM requirement as it does here
for the BACM requirement. Ober II at 1196. The Ninth Circuit in
reviewing the FIP found that it was permissible for us to adopt the
PM-10 de minimis thresholds already in place in the new source
review program to identify de minimis sources for the RACM requirement.
Ober II at 1196. Our reasoning for applying those thresholds for BACM
is the same as our reasoning for applying them for RACM; therefore, we
believe that the NSR thresholds are an appropriate starting point for
determining which source categories are significant and which are de
minimis for the purposes of applying BACM.
Comment: Under the section 188(e) extension provisions, a state
must show that it has complied with all requirements and commitments in
its implementation plan. We interpret this requirement to apply only to
the control measures in the state's previously submitted PM-10
implementation plans. See 24-hour standard proposal at 50282. ACLPI
argues that in addition to fully implementing the control measures in
the SIP revisions that it has submitted, a state must also show that it
has implemented other provisions of its SIP. ACLPI also comments that
EPA's attempt to limit this requirement to PM-10 commitments has
no basis in the Act.
Response: We believe that this criterion's purpose is to assure
that a state is not rewarded with additional time to attain the
PM-10 standards if it has not implemented earlier commitments and
requirements to reduce PM-10 levels. Given this purpose, the
focus of the test to determine if a state has met this

[[Page 48722]]

criterion should be on the implementation of PM-10 emission
reducing control measures rather then on the implementation of
programs, such as monitoring and permitting, that make up the overall
air quality program's infrastructure but are not emission reducing
measures themselves.
Limiting the section 188(e) review to just the PM-10
implementation plan is firmly based on the structure, purpose and
language of the Act. The attainment date extension provisions are
located in title I, part D, subpart 4 "Additional Provisions for
Particulate Matter Nonattainment Areas." Hence, any reference to
the implementation plan within this subpart is to the PM-10
implementation plan, absent specific language to the contrary. The
criterion "the State has complied with all requirements and
commitments pertaining to that area in the implementation plan"
in section 188(e) (emphasis added) contains no language that implies a
reference to all of an area's implementation plans. Moreover, section
188(e) addresses setting the most expeditious attainment date for
meeting the PM-10 air quality standards. There is at best a
tenuous and strained connection between the implementation status of
plans for attaining other air quality standards (e.g., ozone or carbon
monoxide) and the appropriate and most expeditious date for attaining
the PM-10 standard.
The language in section 188(e) is almost identical to the language
in section 188(d) that allows a one-year extension of the moderate area
attainment date if, in part, "the State has complied with all
requirements and commitments pertaining to the area in the applicable
implementation plan." In interpreting and applying section
188(d), we have always considered "the applicable implementation
plan" in question to be the State's SIP for PM-10. See
Memorandum, Sally L. Shaver, OAQPS, to Regional Air Directors,
"Criteria for Granting 1-Year Extensions of Moderate Area
Attainment Dates, Making Attainment Determinations, and Reporting on
Quantitative Milestones," November 14, 1994. See also, 66 FR
32752, 32754 (June 18, 2001) (Attainment date extensions for Utah's
PM-10 nonattainment areas).
Comment: EPA interprets the CAA to allow states to exempt from the
most stringent measures requirement in section 188(e) any source or
source category that it has demonstrated to be de minimis. 24-hour
standard proposal at 50283. ACLPI disagrees that EPA can exempt de
minimis sources of PM-10 from the Act's MSM requirement, arguing
that the Act requires areas seeking an extension of the serious area
PM-10 attainment deadline to demonstrate that their plans include
the most stringent measures that are included in the implementation
plan of any State or achieved in practice in any State, and can
feasibly be implemented in the area," and that there is no de
minimis exception to this explicit mandate.
Response: As stated above in response to a similar comment
regarding the exemption of de minimis sources from the BACM
requirement, we believe the Ober II Court's reasoning in upholding that
exemption for the RACM requirement is also applicable to the MSM
requirement. Again, we invoke a de minimis exemption from the Act's
general but open-ended control requirements like RACM, BACM, and MSM as
a means to ensure that states focus their always limited resources on
the controls most likely to result in real air quality benefits.
Like the RACM requirement, there is no explicit provision in the
Act prohibiting a de minimis source category exemption from the MSM
requirement. Nor is the language in section 188(e)
"uncompromisingly rigid." In fact, the
phrase "to the satisfaction of the
Administrator" in the MSM provision specifically calls for
the Agency to exercise its judgement in deciding how exactingly to
apply the requirement. See Ober II at 1194.
In our policy on the MSM requirement, we are using the same
principles for determining when a source is considered de minimis under
the MSM requirement that we used for the RACM requirement upheld by the
Ober II Court. In doing so, we have carefully constructed the de
minimis exemption for the MSM requirement to prevent states from
eliminating any controls on sources or source categories that alone or
together would result in more expeditious attainment of the PM-10
standards. See annual standard proposal at 19967 and 24-hour standard
proposal at 50583. We note that the Phoenix serious area plan did not
reject any potential MSM on de minimis grounds.
Comment: ACLPI argues that EPA's proposed de minimis exception
violates the Act's requirement that states seeking an extension
demonstrate attainment by the most expeditious alternative date
practicable because it allows EPA and the states to reject otherwise
available control measures based on an arbitrary de minimis test even
if the aggregate effect of implementing MSM on all de minimis sources
would hasten attainment. It also argues EPA's proposal to determine an
appropriate de minimis level by determining whether applying MSM to
proposed de minimis source categories would "meaningfully hasten
attainment" is vague and fails to comport with the Act.
Response: ACLPI misstates the scope of the MSM de minimis
exemption. We do not consider a source category or groups of source
categories to be de minimis if applying MSM to it or to them would
hasten attainment. We stated this clearly in both the proposal for the
annual standard provisions and for the 24-hour standard provisions:
Annual standard proposal at 19969; 24-hour standard proposal at 50583.
In Ober II, the Court found:

Using the [attainment]
deadline to determine whether controls
must be imposed makes sense. The deadline is not an arbitrary date
unrelated to air quality concerns. * * * In this case, the
[FIP]
concludes that the deadline will not be met even if these
small sources of PM-10 were controlled. Under those
circumstances, it is reasonable to decline to control the de minimis
sources of pollution.

Ober II at 1198.

In interpreting the MSM requirement to allow exemptions on de
minimis grounds, we are also using the applicable attainment date to
determine whether controls should be imposed. At the time a state
submits its application for an attainment extension, (including the
showing that its plan includes MSM), it must also submit a
demonstration that attainment will occur by the "most expeditious
alternative date practicable." See CAA section 188(e). If it can
be shown that including a certain set of potential MSM would not result
in more expeditious attainment, then it is consistent with the Act to
not require their inclusion as a condition of approval.
What constitutes "meaningfully hastening attainment"
depends on the actual PM-10 conditions in the nonattainment area
and the particular PM-10 standard under consideration.\10\
Because of this dependence, we cannot in policy specify a time period
that is appropriate in all situations. We can propose the appropriate
time period only within the context of acting on a specific extension
request. For today's rulemaking, the plan did not invoke a de minimis
exemption for evaluating MSM; therefore, we did not need to propose the
time period we would

[[Page 48723]]

consider meaningful for evaluating its de minimis exemption.
---------------------------------------------------------------------------

\10\ This is similar to the de minimis thresholds which we
also cannot specify in advance because they too must be set based on
the actual PM-10 conditions in the nonattainment area and the
particular PM-10 standard under the consideration. See
Addendum at 42011.
---------------------------------------------------------------------------

Comment: Under our policy on MSM, a state may reject a measure as
infeasible for the area on economic grounds. See 24-hour standard
proposal at 50283. ACLPI disagrees that a state can take economic
considerations into account when determining the feasibility of MSM for
the purposes of the MSM demonstration required under section 188(e).
ACLPI argues that the Act only allows for the rejections of an MSM if
it cannot feasibly be implemented in the area and any measure that is
included in another SIP or achieved in practice in another state is by
definition economically feasible because it is capable of being done or
carried out if sufficient resources are devoted to it. ACLPI also
argues that only its interpretation of MSM fits within the Act's
strategy of offsetting longer attainment time frames with more
stringent control requirements and that by allowing for the rejection
of MSM based on cost, EPA has made MSM virtually indistinguishable from
BACM.
Response: We believe that Congress very clearly intended that the
phrase "feasible in an area" in section 188(e) to include
economic considerations. Section 188(e) lists five criteria that we may
consider in determining whether to grant an extension and the length of
an extension, the last of which is "the technological and
economic feasibility of various control measures." Emphasis
added. The term "various control measures" clearly refers
back, in part, to the requirement in the first part of section 188(e)
that contains the requirement that the plan include "the most
stringent measures that * * * can feasibly be implemented in
the area."
By allowing us to consider the economic feasibility of measures in
judging whether to grant an extension and how long an extension to
grant, Congress necessarily also allowed states to consider economic
feasibility in demonstrating the need for an extension of a given
length. If section 188(e) compelled states to adopt all MSM that were
technologically feasible no matter their cost, then there would be no
economic feasibility issues for us to review in exercising our
discretion to grant an extension. ACLPI's position would read the very
explicit criterion the technological and economic feasibility of
various control measures out of section 188(e). A statute should
not be interpreted to render any provision of that statute meaningless.
See Northwest Forest & Resource v. Glickman, 82 F.3d 825, 834 (9th
Cir. 1996). See also Gustafson v. Alloyd Co., 115 S. Ct. 1061, 1067
(1995) (no Act of Congress should "be read as a series of
unrelated and isolated provisions."); Department of Revenue of
Oregon v. ACF Industries, 114 S. Ct. 843, 848 (1994) ("a statute
should be interpreted so as not to render one part inoperative")
(quotation omitted).
We agree that the Act's general strategy is to offset longer
attainment time frames with more stringent control requirements. We do
not agree that the MSM requirement in section 188(e) is the primary
mechanism that assures that increasingly stringent control requirements
are adopted in areas requesting an extension. In fact, the most
stringent control measure provision in section 188(e) will not
necessarily result in the adoption of any additional control measures
above and beyond those already adopted by the state to provide for BACM
and expeditious attainment.
The MSM provision is written to assure that a state consider the
most effective controls from elsewhere in the country for
implementation in the area requesting an attainment date extension. The
results of the analysis are completely dependent on how well other
areas have controlled their PM-10 sources. If other areas have
not controlled a particular source category well, then the resulting
MSM for that source category will not be the more effective level of
control than what is actually feasible for the area. The MSM provision,
however, does not require a state to determine if the feasibility of
controlling a source category at a level greater than the most
stringent level from another area. In other words, it does not require
states to determine the maximum level of control that could be applied
to a source category given local conditions and the additional
implementation time afforded by an extension.
In considering the MSM provision, there is a tendency to assume
that there are always better controls elsewhere than there are in the
local area. This assumption is unwarranted, especially for an area that
has already gone through a systematic process of identifying and
adopting BACM for their significant sources. These areas are likely to
have already evaluated the best controls from other areas (as Arizona
did, see MAG plan, Chapter 5) and either adopted them as BACM or
rejected them as not feasible for their area. As a result, the
likelihood of uncovering substantial new controls during a MSM
evaluation is low.
More important than the MSM provision for assuring adoption of
additional controls is the requirement in CAA sections 189(b)(1)(A)(ii)
and 188(e) that the PM-10 plan demonstrate attainment by the most
expeditious alternative date practicable but no later than December 31,
2006. The SIP revision containing this demonstration must accompany any
request for extension of the attainment date under section 188(e).
Because we are required to grant the shortest possible extension, a
state must demonstrate that it has adopted the set of control measures
that will result in the most expeditious date practicable for
attainment. This requirement may mean that a state must adopt controls
that go beyond the most stringent measures adopted or implemented
elsewhere.
Comment: ACLPI disagrees with EPA's interpretation of the phrase
"to the satisfaction of the Administrator" in section
188(e). Specifically, ACLPI rejects the notion that by using this
phrase, Congress intended to grant EPA discretion to accept an MSM
demonstration even if it falls short of having every MSM possible
because this interpretation contradicts the express language of section
188(e) as well as the requirement that the area achieve attainment by
the most expeditious date practicable. ACLPI argues that the Act uses
the phrase to grant EPA the authority to determine whether a state has
adequately demonstrated that its plan includes the most stringent
measures that are feasible, not to give the agency carte blanche to
circumvent the will of Congress by ignoring the State's failure to meet
this requirement.
Response: First, the Act does not require states to adopt every
possible MSM. There is nothing in the express language of section
188(e) that requires such an outcome. The MSM requirement in section
188(e) is not phrased as "all most stringent measures" or
as "every most stringent measure practicable or possible."
Our interpretation of the MSM requirement is consistent with how we
have historically interpreted the general RACM requirement in CAA
section 172(c)(1), a requirement which does use the word
"all." This section requires that nonattainment area plans
"provide for the implementation of all reasonably available
control measures * * *". (emphasis added). In
interpreting this requirement, we have long held that a state is not
obligated to adopt and implement measures that will not contribute to
expeditious attainment.\11\

[[Page 48724]]

We established this position in a policy that predates the CAA
Amendments of 1990. 44 FR 20372, 20375 (April 4, 1979). Congress did
not revise the RACM requirement in the 1990 Amendments and thereby
endorsed our position. We reaffirmed this position in 1992, see General
Preamble at 13560 (April 16, 1992). The court has also endorsed this
position in the specific context of the section 189(a) RACM requirement
where the court found that using the attainment deadline to determine
whether controls must be reasonable "makes sense." Ober II
at 1198.
---------------------------------------------------------------------------

\11\ We would not consider a measure to be reasonable if
it does not contribute to expeditious attainment. See General
Preamble at 13560; 63 FR 15920, 15932 (April 1, 1998) (proposed
Phoenix area PM-10 FIP); and 66 FR 26913, 26929 (May 15, 2001)
(approval of the Beaumont/Port Arthur ozone nonattainment area
plan). Similarly, for the purposes of the MSM requirement, we would
not consider such a measure to be feasible for the area.
---------------------------------------------------------------------------

We are interpreting the MSM requirement using the same principle.
We are again using the applicable attainment date to determine whether
the MSM provision requires a particular control or set of controls to
be imposed. Before we can grant an attainment date extension, the state
must show that its plan will result in attainment by the "most
expeditious alternative date practicable." See CAA sections
188(e) and 189(b)(1)(A)(ii). If a state can be shown that including a
certain set of potential MSM would not result in more expeditious
attainment, then it is reasonable and consistent with the Act not to
require their inclusion as a condition of approval.
Second, Congress did not need to add the phrase "to the
satisfaction of the Administrator" to grant us the authority to
review the adequacy of a state's MSM demonstration. It had already
given it to us by granting us the discretionary authority under section
188(e) to grant or to deny a state's extension request. By attaching
the phrase specifically to the MSM requirement, Congress emphasized
EPA's administrative authority to determine an appropriate
interpretation of what is conceivably a very open-ended and exacting
requirement.
Finally, in reviewing whether Arizona has appropriately excluded an
otherwise feasible measure or group of feasible measures in its MSM
analysis, we have invoked only one criterion: whether or not the
measure or group of measures are necessary for attainment by the
earliest alternative date practicable. Given that this is our sole
criterion, our interpretation of "to the satisfaction of the
Administrator" does not conflict with the Act's requirement for
attainment by the earliest alternative date practicable.
Comment: ACLPI argues that EPA's proposed methodology for
determining MSM is flawed because it apparently does not require states
to quantify expected emission reductions from measures for purposes of
making MSM demonstrations.
Response: We do not believe that quantification is always necessary
or possible or can always be done accurately enough to be meaningful
and therefore cannot be required as the sole means of determining
relative stringency. Often, control measures are easily comparable
without quantification. In these cases, quantification adds no
additional information and is unnecessary. In other cases,
quantification is not possible or cannot be done accurately enough
because there is no methodology and/or insufficient data to calculate
the difference in emissions reductions between measures.
Because quantification is often problematic, we have not
established in our policy on the MSM provision a specific method that a
state must use to compare the stringency of measures, rather we expect
a state to select the best method for making this comparison on a case-
by-case basis taking into account the need to provide a clear and
conclusive demonstration. See 24-hour standard proposal at 50284.

B. Comments on EPA's Detailed Evaluation of the Phoenix Serious Area
PM-10 Plan

Comment: ACLPI disagrees with EPA's statement that the Act does not
require the metropolitan Phoenix serious area plan to address the
adequacy of the PM-10 monitoring network, asserting that section
110(a)(2)(B)(i) specifically mandates this.
Response: Section 110(a)(2)(B)(i) in title 1, part A of the CAA
requires implementation plans to provide for the establishment and
operation of a system to monitor, compile and analyze data on ambient
air quality. These systems must necessarily be in place and operating
long before a state can develop a nonattainment area plan under title
I, part D of the CAA (such as the Phoenix serious area plan) because it
is the data from this monitoring network which establish the area's
nonattainment status and its initial classification as well as the
degree of control needed to attain the applicable standard. Therefore,
SIP monitoring provisions are addressed separately and well in advance
of the development of nonattainment area plans.
Nonattainment area plans are not, in general, required to address
how the area's air quality network meets our monitoring regulations.
Nor do we generally approve or disapprove monitoring networks as part
of nonattainment area plans. These plans are submitted too infrequently
to serve as the vehicle for assuring that monitoring networks remain
adequate and current. Instead, our monitoring regulations in 40 CFR
part 58 require states to submit reports on the adequacy of their
ambient air quality monitoring networks annually. We discuss the
adequacy of the monitoring network as part of our proposed action on
the Phoenix plan to support our finding that the plan appropriately
evaluates the PM-10 problem in the area. Reliable ambient data is
necessary to validate the base year air quality modeling which in turn
is necessary to assure sound attainment demonstrations. The network,
however, does not need to meet all our regulatory requirements to be
found adequate to support air quality modeling. A good spatial
distribution of sites, correct siting, and quality-assured and quality-
controlled data are the most important factors for generating adequate
data for air quality modeling.
Comment: Several times in its comments, ACLPI asserts that the
Phoenix serious area plan fails to includes a specific measure and also
fails to provide a reasoned justification for the rejection of the
measures and that this violates both the CAA and EPA guidance, which
require serious area PM-10 SIP revisions to provide for the
implementation of all BACM or provide a reasoned justification for
their rejection.
Response: ACLPI is incorrectly characterizing both the CAA's BACM
requirement and our guidance regarding it. Neither requires the
implementation of all BACM. CAA section 189(b)(1)(B) requires that SIPs
include "provisions to assure that the best available control
measures for the control of PM-10 shall be
implemented * * *" There is nothing in this
express language of this section that requires the implementation of
all BACM; the requirement is not phrased as "all best available
control measures" or as "every best available control
measure possible."
In our serious PM-10 nonattainment area planning guidance
(Addendum at 42014), we have interpreted the BACM requirement to mean
that a state must only provide for the implementation of BACM on its
significant source categories: "in summary [of the process for
selecting BACM for area sources], the State must document its selection
of BACM by showing what control measures applicable to each source
category (not shown to be de minimis)

[[Page 48725]]

were considered. The control measures selected should preferably be
measures that will prevent PM-10 emissions rather than
temporarily reduce them." See also Addendum at 42011 (De Minimis
Source Categories). Again, this guidance does not require the
implementation of all BACM.
Comment: ACLPI notes that the Arizona legislature repealed the
remote sensing program during the 2000 regular session and thus the
plan fails to demonstrate adequate legal authority for that measure.
ACLPI also notes that the September 10, 2001 ruling by the Arizona
Federal District Court found the State's repeal and discontinuation of
the RSD program a violation of the CAA and asked that the ruling be
included in the record for this rulemaking. Finally, ACLPI asserts that
as a measure that has been implemented in the State for 3 years, it is
a MSM and thus required under CAA section 188(e).
Response: The remote sensing (RSD) program is not a measure
developed specifically for the MAG serious area PM-10 plan, but
rather one Arizona adopted in 1994 as part of its carbon monoxide and
ozone plans. In the MAG PM-10 plan, Arizona used the RSD program
in the same manner as it used a number of other existing measures: to
support its demonstration that the State has provided for the
implementation of BACM for the on-road motor vehicle category.
In the 24-hour standard proposal, we reviewed the plan's BACM and
MSM demonstrations for this source category assuming that the RSD
program was no longer in place and determined that the plan still
provided for the implementation of BACM and inclusion of MSM without
it. See 24-hour standard proposal at 50259. Arizona has in place one of
the nation's most comprehensive programs to address on-road motor
vehicle emissions. With the additional measures in the serious area
plan (including a more stringent diesel I/M program and measures both
encouraging and requiring diesel fleet turnover), we believe the plan
easily provides for the implementation of BACM and inclusion of MSM for
on-road motor vehicle exhaust. See 24-hour proposal at 50258.
The plan included a very small NO_X benefit of 4 kg per
day, 0.003 percent of the daily NO_X inventory. See email,
Cathy Arthur (MAG) to Frances Wicher (EPA), "Impact of Removal of
Remote Sensing Program on NO_X in 2006," October 2,
2001. While not calculated in the serious area plan, a rough estimate
of potential directly-emitted PM-10 reductions from the program
is no more than one-half ton per year (or 2.6 lbs per day). Neither the
NO_X benefit nor the directly-emitted PM-10 benefit
would contribute to expeditious attainment of the PM-10 standards
in the Phoenix area, so the State did not need to include the measure
to assure expeditious attainment.
Arizona stopped implementing the RSD program because of its high
cost per ton of reductions, in the order of thousands of dollars per
ton of pollutant reduced; that is, its economic infeasibility. See
ADEQ, Final Arizona State Implementation Plan Revision, Basic and
Enhanced Vehicle Emissions Inspection/Maintenance Program, June 2001,
p. 26. Under EPA's MSM policy, economic infeasibility is a valid reason
for rejecting a measure as MSM. See 24-hour standard proposal at 50283.
Because we have determined that the Metropolitan Phoenix serious
area plan provides for the implementation of BACM, inclusion of MSM and
expeditious attainment without the RSD program, any deficiency in legal
authority for the program does not affect our approving the plan or
granting an attainment date extension under CAA section 188(e).
Comment: ACLPI disagrees that the plan provides a reasoned
justification for the rejection of CARB diesel which ACLPI claims both
EPA and MAG conceded is an MSM. ACLPI asserts that EPA did not accept
the State's justification and developed its own justification for the
failure to adopt the measure. Citing Delaney v. EPA, 898 F.2d 695 (9th
Cir. 1990), ACLPI states that it is not EPA's role to supply
justifications that the state has not itself claimed. ACLPI also
asserts that BACM cannot be excused if it would not advance the
attainment date by one year; a measure must be adopted if it would
advance the attainment date by even one day.
Response: Neither EPA nor MAG concedes that CARB diesel is a most
stringent measure that is feasible for the Phoenix area. The serious
area plan rejects CARB diesel as infeasible for the Phoenix area based
on costs. MAG plan, p. 9-46. Noting the uncertainties regarding
this cost estimate, we could not judge whether this justification was
reasonable or not. Annual standard proposal at 19973. The question then
was whether we could still approve the MSM demonstration without CARB
diesel and absent a reasoned justification for not including it.
Our sole criterion for determining if the plan provides for MSM is
whether it has excluded any feasible MSM or a group of feasible MSM
that, if adopted and implemented early, would result in attainment of
the PM-10 standards more expeditiously. On-road and nonroad
engines (the source categories that would be affected by CARB diesel)
are not implicated in 24-hour exceedances of the PM-10 standard.
Microscale plan, tables 3-2 to 3-5. Except for the Salt
River monitoring site with its fugitive dust generating industrial
sources, 24-hour exceedances in the Phoenix area are due exclusively to
windblown dust from disturbed ground. Microscale plan, p. 16.
Introducing CARB diesel would not contribute to expeditious attainment
of the 24-hour standard.
Annual standard exceedances are also dominated by fugitive dust
sources with on-road and nonroad engines contributing little to annual
PM-10 levels in the area. The small emission reduction associated
with the introduction of CARB diesel would not advance the attainment
date in the area, either by itself or in combination with other
measures. It takes a reduction of more than 4 metric tons per day to
advance the annual standard attainment by a year in the Phoenix area.
EPA TSD section "Reasonable Further Progress and Quantitative
Milestones." The MAG plan estimates reductions from introducing
CARB diesel at less than 0.8 mtpd in 2006. MAG plan, p. 10-37.
Advancing attainment by one year is the appropriate increment for
judging whether a measure would expedite attainment of the annual
standard. One year is the smallest increment of time that one can
advance attainment of the annual standard because the annual standard
is measured over a calendar year, from January 1 to December 31. See 40
CFR part 50.
Because the including CARB diesel would not result in more
expeditious attainment of either PM-10 standard, we find that the
Phoenix serious area plan has meet the MSM requirement without it and
without including a reasoned justification for rejecting it ACLPI's
reliance on Delaney is misplaced. In that case, the Court found that
EPA's 1979 guidance explicitly provided that certain measures were
presumptively reasonably available and that it was the state's burden
to overcome that presumption. In 1992, we repealed the provisions of
the 1979 guidance at issue in Delaney and added provisions specifically
for PM-10 that establishes no presumption for those measures. See
General Preamble at 13560. Here, there was no EPA policy presumption
that CARB diesel was a feasible measure for the Phoenix area which
Arizona had to overcome.
Comment: ACLPI argues that the metropolitan Phoenix plan improperly
rejects various TCMs related to congestion management and idling

[[Page 48726]]

reduction on the grounds that individually each measure would have a
relatively small impact on PM-10 emissions because the CAA does
not contain a "small impact" exception from BACM and the
plan's purported justification for rejecting the TCMs does not comport
with EPA's BACM guidance. ACLPI also argues that the omission of these
measures based solely on the amount of their individual impact violates
the requirement of attainment as expeditiously as practicable because
collectively, the measures might have a significant impact.
Response: Table TCM-3 in the EPA TSD lists four congestion
management or idling measures that were identified as potential BACM
but were not adopted as part of the plan: off-peak movement of goods,
truck restrictions during peak times, limit excessive car dealership
vehicle starts, and limit idling time to 3 minutes. Contrary to ACLPI's
assertions, the plan did not reject these measures on "small
impact" grounds. Rather, it provides no clear justification for
rejecting any of these measures.
Prior to the development of the serious area plan, the Phoenix area
already had in place a comprehensive set of TCMs. See EPA TSD, Table
TCM-2. With the additional measures in the serious area plan
(including additional traffic light synchronization, transit
improvements, and bicycle and pedestrian facility improvements), we
believe the plan easily provides for the implementation of BACM for on-
road motor vehicles even without the four measures listed above. See
annual standard proposal at 19974 and 24-hour standard proposal at
50260. In addition, these measures have little PM-10 benefit;
therefore, their adoption and implementation would not contribute to
expeditious attainment of the PM-10 standards in the Phoenix
area.
As we have discussed previously, neither the CAA nor EPA guidance
requires the implementation of all BACM, only that a state provide for
the implementation of best available control measures on its
significant source categories. See CAA section 189(b)(1)(B) and the
Addendum at 42014. Moreover, we do not believe that the CAA requires us
to reject an otherwise sound plan because of minor issues that do not
affect the principal purposes of the plan: implementation of BACM and
progress towards and expeditious attainment. Because the measures would
not contribute to expeditious attainment and the State has provided for
the implementation of BACM without them, we do not believe that the
lack of these measures or a reasoned justifications for rejecting the
measures is grounds for disapproving the plan.
Comment: Several times in its comment letter, ACLPI states that
some jurisdictions in the nonattainment area have not made commitments
to adopt certain measures when other jurisdictions have and that the
plan provides no explanation as to why the implementation of these
measures by all jurisdictions is infeasible. ACLPI asserts that EPA
guidance indicates that BACM should be adopted and implemented
throughout a serious PM-10 nonattainment area unless 100 percent
implementation is infeasible. ACLPI also contents that because some
jurisdictions have committed to more stringent control measures than
other jurisdictions, their measures must be considered BACM/MSM and the
plan must either provide for these measures' implementation by all
jurisdictions or demonstrate why this is infeasible.
Response: ACLPI cites our serious PM-10 nonattainment area
planning guidance at Addendum at 42014 to support its first premise.
This guidance states:

When evaluating economic feasibility, States should not restrict
their analysis to simple acceptance/rejection decisions based on
whether full application of a measure to all sources in a particular
category is feasible. Rather, a State should consider implementing a
control measure on a more limited basis, e.g., for a percentage of
the sources in a category if it is determined that 100 percent
implementation of the measure is infeasible. This would mean, for
example, that an area should consider the feasibility of paving 75
percent of the unpaved roadways even though paving all of the roads
may be infeasible.

Contrary to ACLPI's assertion, this guidance does not demand states
implement a measure 100 percent unless 100 percent implementation is
infeasible. Rather, it suggests that states not consider "full
implementation on all sources in the nonattainment area" as the
only possible implementation scenario for evaluating a measure's
economic feasibility and that, before it rejects a measure as
economically infeasible, it should first consider less extensive
implementation.
The CAA's requirements to implement BACM and include MSM apply to
the nonattainment area as a whole and not to each individual
jurisdiction within that nonattainment area.\12\ Consequently, we have
reviewed whether the combined effect of all controls adopted in the
metropolitan Phoenix area for a particular source category results in
the implementation of BACM and the inclusion of MSM for that source
category. Because BACM and MSM are nonattainment area-wide
requirements, the actions of one jurisdiction within the nonattainment
area cannot set a standard for BACM and/or MSM that must either be
implemented by all other jurisdictions within the area or demonstrated
to be infeasible.
---------------------------------------------------------------------------

\12\ This is clear from the language of the applicable CAA
sections. CAA section 189(b)(1)(b) requires that "a state in
which all or part of a serious area is located shall submit an
implementation plan for such area that includes * * *
provisions to assure that [BACM]
* * * shall be
implemented * * * " CAA section 188(e) requires that
"the State [requesting an extension of the attainment date]
demonstrates * * * that the plan for that [serious]
area
includes the most stringent measures * * * " The
requirements in both sections apply to the serious area and not to
the individual jurisdictions within the serious area.
---------------------------------------------------------------------------

Comment: Several times in its comment letter, ACLPI states that
some jurisdictions in the nonattainment area have not made commitments
to adopt certain measures when other jurisdictions have. In this
context, ACLPI asserts that CAA section 110(a)(2)(E) requires that
plans provide assurances of adequate personnel, funding and authority
to implement control measures.
Response: ACLPI is incorrectly applying CAA section 110(a)(2)(E).
Under this section, a state needs to provide assurances of adequate
personnel, funding and authority only for those control measures that
it has included in its submitted implementation plan. It does not need
to provide such assurances for control measures that are not included
in its submitted implementation plan, whether or not an argument could
be made that such measures should have been included to meet another
CAA provision. This is clear from the language of the section:
"[e]ach implementation plan submitted by a State * * *
shall * * * provide (i) necessary assurances that the State
* * * will have adequate personnel, funding, and authority
under State * * * law to carry out such implementation
plan." (emphasis added). Therefore, where a jurisdiction has not
committed to implement a measure, it is not required to provide
assurances of adequate resources as part of its submittal in order to
have it approved under CAA section 110(a)(2)(E).
Comment: For a number of reasons, ACLPI asserts that Rule 310.01
weakens the FIP rule requirements for disturbed vacant lots and unpaved
roads. ACLPI further asserts that EPA's conclusion that the differences
between the FIP rule

[[Page 48727]]

and Rule 310.01 will not have a significant impact on emission
reductions is unsupported by quantification or analysis of the relative
emission reductions and thus EPA's approval of the rule change as
sufficient to provide the same level of control as the FIP rule is
therefore arbitrary and capricious and violates the Act and EPA
guidance that require BACM to go beyond existing RACM-level controls.
Response: We are not withdrawing or modifying the FIP fugitive dust
rule in this action. Therefore, comments regarding the effect of
approving Rule 310.01 on the FIP rule are not germane.
Neither the CAA nor EPA guidance mandates that a BACM-level control
measure always go beyond the existing RACM-level control measure. While
both the CAA and EPA guidance intend a greater level of stringency to
apply in areas that are required to implement BACM than in those areas
required only to implement RACM, the intent is that the overall
PM-10 control strategy for a category should, in general, be more
stringent rather than that every individual control measure in that
strategy be more stringent.
A state can show that it has implemented BACM in more than one way.
It can show it by demonstrating that its BACM-level control measures
for a source category collectively go beyond existing RACM-level
measures for that category. Addendum at 42013. It can also show it by
demonstrating that its adopted measures meet the definition of BACM.
Addendum at 42010. Thus, if a state has already adopted measures to
meet the RACM requirement that are collectively the "maximum
degree of emissions reduction achievable from a source or source
category which is determined on a case-by-case basis, considering
energy, economic and environmental impacts" then it need not
strengthen the measures further to meet the BACM requirement.
We also emphasize that a BACM demonstration is done source category
by source category and not measure by measure. In determining whether a
state has provided for the implementation of BACM on a particular
source category, we need to look at all the control measures for that
category. In this particular instance, Rule 310.01 alone does not
constitute the entire BACM-level control strategy for vacant lots and
unpaved roads. Rather, it is the combination of Rule 310.01, Rule 310,
and city and town commitments that constitute the BACM strategy for
this category. See annual standard proposal at 19977 and 19978 and 24-
hour standard proposal at 50263 and 50264.
Comment: ACLPI comments that EPA's approval of the BACM/MSM
demonstration for construction sites is contingent upon commitments by
MCESD to add additional control requirements for dust suppression and
to make other changes to MCESD Rule 310. While ACLPI agrees that Rule
310 needs strengthening, it asserts that a commitment to make
unspecified changes to the rule to achieve a BACM/MSM level of control
is inadequate because it does not meet the requirements of the Act for
enforceable measures no later than June 10, 2000 (BACM) or as
expeditiously as practicable (MSM) and offers no assurances that
adequate changes will ever be adopted. ACLPI claims that the techniques
for controlling emissions from construction activities and sites are
well known.
ACLPI further asserts that EPA may only approve a plan based on a
commitment pursuant to CAA section 110(k)(4) and then only if the state
commits to adopt specific enforceable measures by a date certain but
not later than 1 year after the date of approval of the plan revisions.
ACLPI claims that MCESD's commitments to improve Rule 310 do not meet
the requirements of CAA section 110(k)(4) because it does not commit to
adopt specific enforceable measures but only to "research,
develop and incorporate" additional unspecified measures for dust
suppression practices/equipment into Rule 310 or the dust control plans
required under that rule. Finally, ACLPI states that the serious area
plan must include the BACM/MSM measures identified from South Coast,
Clark County and Imperial County or provide a reasoned justification
for their rejection and it is not enough for Maricopa County to commit
to studying these measures.
Response: We are approving MCESD's commitments under CAA section
110(k)(3) and not section 110(k)(4). We believe consistent with
past practice that the Act allows approval of enforceable
commitments under section 110(k)(3) that are limited in scope where
circumstances exist that warrant the use of commitments in place of
adopted measures. These commitments are enforceable by EPA and citizens
under, respectively, CAA sections 113 and 304 of the Act.\13\
---------------------------------------------------------------------------

\13\ In the past, we have approved enforceable commitments
and courts have enforced these actions against states that failed to
comply with those commitments. See, for example, American Lung
Association of New Jersey v. Kean, 670 F. Supp. 1285 (D.N.J. 1987),
affirmed, 871 F.2d 319 (3rd Cir. 1989); NRDC v. N.Y. State Dept. of
Environmental Conservation, 668 F. Supp. 848 (S.D.N.Y.1987);
Citizens for a Better Environment v. Deukmejian, 731 F. Supp. 1448,
reconsideration granted in part, 746 F. Supp. 976 (N.D. Cal. 1990);
Coalition for Clean Air, et al. v. South Coast Air Quality
Management District, CARB, and EPA, No. CV 97-6916 HLH, (C.D.
Cal. August 27, 1999). Further, if a state fails to meet its
commitments, we can make a finding of failure to implement the SIP
under Section 179(a), which would start an 18-month period for the
State to begin implementation before mandatory sanctions are
imposed.
---------------------------------------------------------------------------

Section 110(k)(4) provides for the conditional approval of State
commitments; however, these commitments do not need to be enforceable.
Commitments approved under section 110(k)(3) are not enforceable by
either EPA or citizens, rather the Act provides that the conditional
approval will convert to a disapproval if "the State fails to
comply with such commitment."
MCESD's commitments have been adopted by the Maricopa County Board
of Supervisors after appropriate public notice and hearing and meet
Arizona state requirements for the adoption of enforceable SIP
commitments by local jurisdictions. See A.R.S. 49-406 G. and
Maricopa County Resolutions. Once we have approved them into the SIP
under CAA section 110(k)(3), the commitments are fully enforceable
against MCESD and the Board under CAA sections 113 and 304.
We are allowing the use of these enforceable commitment here
because it is the only approach available at this time to assure the
needed improvements to Rule 310. The information needed to make these
improvements and to specify the details of these improvements does not
currently exist and must be developed through additional research and
investigation.
While the general techniques for controlling dust from construction
activities are well known (e.g. watering), the most effective
applications of these general techniques for controlling emissions from
any particular construction site in Maricopa County (e.g., how much
water and when to apply it) are not well known. Construction sites
differ in soils (affecting the quantity of water needed for effective
control), meteorological conditions (affecting the frequency with which
water must be applied), equipment size/use (affecting quantity and
plume characteristics of dust generated), project phase (affecting
quantity and time period of dust generated), and level of activity
(affecting quantity of dust generated). The specifics of how controls
should be applied to meet the 20 percent opacity standard and other
applicable Rule 310 standards will vary depending on these and other
site and activity parameters.

[[Page 48728]]

One of the enforceable commitments by MCESD is to develop
parameters that address various site conditions and are sufficient to
ensure that Rule 310's performance standards are met more consistently.
The concern captured in this enforceable commitment is that, while it
is important for sites to have some flexibility in selecting which
control measure(s) to implement, there are field circumstances where
the technique must be implemented in a certain manner to be effective.
For example, where hydrophobic soils exist under dry meteorological
conditions, it may be necessary to water several days prior to ground
disturbance to allow water to penetrate to the depth of cut. In some
other situations, a tackifyer or surfactant needs to be added to the
water for better penetration. However, these approaches may be needed
only under certain field conditions. MCESD needs additional time to
investigate when and where it would be appropriate to require more
specific controls and what those controls should be.
Another one of MCESD's commitments is to modify Rule 310's existing
opacity standard/test method or add an additional opacity standard(s)/
test method(s), so that they better characterize fugitive dust sources
that create intermittent plumes. Information on how to do this most
effectively is currently lacking. While derivations on EPA Reference
Method 9 (the standard opacity test method) observations have been
adopted in Rules 310 and 310.01 for unpaved roads and unpaved parking
areas to better accommodate the temporal nature of plumes from vehicle
passes, additional field research is needed to determine how
observation intervals and other aspects of opacity readings can be
better tailored to the variety of intermittent plumes generated by
construction equipment and activities.
Once we determine that circumstances warrant the use of an
enforceable commitment, we believe that three factors should be
considered in determining whether to approve the enforceable
commitments: (1) whether the commitment addresses a limited portion of
the statutorily-required program; (2) whether the state is capable of
fulfilling its commitment; and (3) whether the commitment is for a
reasonable and appropriate period of time.\14\
---------------------------------------------------------------------------

\14\ In 1994, in considering EPA's authority under section
110(k)(4) to conditionally approve unenforceable commitments, the
Court of Appeals for the District of Columbia Circuit struck down an
EPA policy that would allow States to submit (under limited
circumstances) commitments for entire programs. Natural Resources
Defense Council v. EPA, 22 F.3d 1125 (D.C. Cir. 1994). While we do
not believe that case is directly applicable here, we agree with the
Court that other provisions in the Act contemplate that a SIP
submission will consist of more than a mere commitment. See NRDC, 22
F.3d at 1134.
---------------------------------------------------------------------------

First, MCESD's commitments address a very limited portion of the
CAA's requirements for the implementation of BACM and the inclusion of
MSM. In this case, MCESD's commitments are improvements to aspects of
the already-adopted and implemented Rule 310; improvements that, we
again emphasize, cannot be made at this time because additional
research is needed.\15\ Second, MCESD has committed resources adequate
to fulfill its commitments and has provided information on its work
plan for completing the necessary technical work. See Maricopa County
commitments as revised December 19, 2001.
---------------------------------------------------------------------------

\15\ As we will discuss later, MCESD has also committed to
adopt a rule for certain types of charbroilers. This commitment does
not change our analysis here because, even when combined with the
commitments to improve Rule 310, it is a very small part of the
demonstration that the plan includes MSM.
---------------------------------------------------------------------------

The final factor is whether the commitment is for a reasonable and
appropriate period. All but one of the commitments have deadlines of
December 2002, less than a year after their approval. The other
commitment is the implementation of a second level of dust control
education that will begin in the March to June 2003 time frame. See
Maricopa County commitments as revised December 19, 2001. Given the
complexity of the tasks required by the commitments, we believe that
these schedules are expeditious. Moreover, they are consistent with the
attainment and RFP demonstrations in the plan.
Our approach here of accepting enforceable commitments that are
limited in scope is not new. We have historically recognized that under
certain circumstances, issuing a full approval may be appropriate for a
submission that consists, in part, of an enforceable commitment. See
e.g., 62 FR 1150, 1187 (January 8, 1997) (ozone attainment
demonstration for the South Coast Air Basin); 65 FR 18903 (April 10,
2000) (revisions to attainment demonstration for the South Coast Air
Basin); 63 FR 41326 (August 3, 1998) (federal implementation plan for
PM-10 for Phoenix); 48 FR 51472 (State Implementation Plan for
New Jersey).
Nothing in the Act speaks directly to the approvability of
enforceable commitments. However, we believe that our interpretation is
consistent with its provisions. For example, CAA section 110(a)(2)(A)
provides that each SIP "shall include enforceable emission
limitations and other control measures, means or
techniques * * * as well as schedules and
timetables for compliance, as may be necessary or appropriate to meet
the applicable requirement of the Act." (Emphasis added.) The
emphasized terms mean that enforceable emission limitations and other
control measures do not necessarily need to be fully adopted to meet
the Act's applicable requirements for the implementation of BACM and
inclusion of MSM. Rather, the emissions limitations and other control
measures may be supplemented with other SIP rules for example,
the enforceable commitments we are approving today as long as the
entire package of measures and rules provides for BACM and MSM.\16\
---------------------------------------------------------------------------

\16\ Our interpretation that the Act allows for an
approval of limited enforceable commitments has been upheld by the
Ninth Circuit Court of Appeals, as well as by other circuits. See
Kamp v. Hernandez, 752 F.2d 1444 (9th Cir. 1985); City of Seabrook
v. EPA, 659 F.2d 1349 (5th Cir. 1981); Connecticut Fund for the
Environment v. EPA, 672 F.2d 998 (2d Cir.), cert. denied 459 U.S.
1035 (1982); Friends of the Earth v. EPA, 499 F.2d 1118 (2d Cir.
1974).
---------------------------------------------------------------------------

Comment: ACLPI comments that the CAA requires that SIPs must
provide for the implementation of all RACM and that the Governor's
Agricultural Best Management Practices Committee identified a variety
of available and feasible control measures which are included in the
agricultural general permit rule as BMPs. ACLPI asserts that the Rule
does not meet the CAA requirement for all RACM because it only requires
the implementation of one BMP from each of three categories of farm
activities even if the implementation of more than one BMP would be
technologically and economically feasible.
Response: This comment is neither germane to today's action nor
timely. In today's action, we have addressed only whether Arizona's BMP
general permit rule provides for the implementation of BACM and the
inclusion of MSM. We have not addressed whether it also provided for
the implementation of RACM because we have already done so in an
earlier rulemaking that was finalized on October 11, 2001. The
appropriate time for ACLPI to raise issues regarding whether the
general permit rule meets the CAA's RACM requirement for agricultural
sources in the Phoenix area was during the comment period on this
earlier rulemaking. ACLPI made comments on this earlier rulemaking, and
we fully addressed those comments in the final

[[Page 48729]]

action. See 66 FR 51869, 51871. See also, 66 FR 34598 (June 29, 2001).
Comment: ACLPI asserts that the metropolitan Phoenix area plan
fails to include the most stringent measures as required by CAA section
188(e) because it does not uniformly require the cessation of tilling
on high wind days as South Coast Rule 403 rule does but rather includes
it as one measure among several that a farmer may choose to implement.
ACLPI further asserts that ADEQ's attempt to justify this deviation by
stating that "no research currently exists which demonstrates
that cessation of high wind tilling when gusty winds exceed 25 mph in
the Maricopa County area is more effective at reducing PM-10 then
the agricultural PM-10 general permit * * *" is
irrelevant because the appropriate inquiry is whether the cessation of
tilling on high wind days combined with the implementation of at least
one other BMP would be more effective at reducing PM-10 which
ACLPI claims, without support, it would be.
Response: South Coast Rule 403 does not require cessation of
tilling on high wind days. Rule 403 includes a list of optional
measures an affected source can use to reduce PM-10. For
agricultural sources affected by Rule 403, the South Coast AQMD
developed a series of farming practices that can be used by a grower as
alternative means to comply with the requirements of Rule 403. These
practices are listed in "Rule 403 Agricultural Handbook: Measures
to Reduce Dust from Agricultural Operations in the South Coast Air
Basin" ("Handbook"). If a grower decides to opt for
compliance with the Rule by utilizing the dust control practices in the
Handbook, the grower must cease tilling and soil preparation operations
when winds are over 25 mph.
The requirement to cease tilling on high wind days is found in Rule
403.1 ("Wind Entrainment of Fugitive Dust"). The
requirement is applicable only to the Coachella Valley (Palm Springs
area) of the South Coast air basin and has a number of exemptions. See
South Coast Rule 403.1, sections (a), (d)(4), and (h)(4).
The BMP general permit includes "limited activity during high
wind events" among the list of BMPs from which a grower can
select. The BMP Committee and Arizona decided not to require cessation
of tilling on high wind days as a provision in the general permit for a
number of technical and practical reasons, the main ones being the
infrequency of high wind events in the Phoenix area, especially in
comparison to the frequency of high wind events in the Coachella
Valley.
Based on local meteorological data, MAG estimated that there were
11 days in 1995 with winds greater than 15 mph. In the Phoenix
nonattainment area, the State determined that a small percentage (i.e.,
15 percent) of tilling occurs during the high wind season (i.e., March
through September). Within the high wind season, only 4 percent of days
have wind speeds greater than 15 mph.\17\ The Coachella Valley is much
more windy, typically experiencing high wind greater than 25 mph on 47
days per year.\18\ Based on this information, the BMP Committee and the
State determined that an agricultural requirement developed
specifically for Coachella Valley high wind conditions was not
appropriate for the Phoenix area and that requiring cessation of
tilling on high wind days would not be reasonable because since it
would impact a small number of growers and provide minimal reductions.
---------------------------------------------------------------------------

\17\ In fact, when using mean hourly wind speed
observations averaged over all monitoring sites in the Maricopa
County nonattainment area for 1995, it was estimated that there 29
hours with wind speeds between 15 and 19.9 mph, 7 hours with wind
speeds between 20 and 24.9 hours, and only one hour with wind speeds
over 25 mph. MAG TSD, Appendix II, Exhibit 7 "Wind Criteria
and Associated Emissions for Regional Particulate Matter
Modeling," Updated April 13, 1999, p. 3.
\18\ The Coachella Valley is not the only agricultural
area in the South Coast district. Riverside (outside of the
Coachella Valley) and San Bernardino Counties are the predominant
agricultural areas in the region. These areas experience winds
greater than 25 mph approximately 25 and 23 days per year,
respectively, yet the South Coast does not impose the cessation of
tilling requirement in these areas unless a grower opts to use the
practices listed in the Handbook as the means of complying with Rule
403.
---------------------------------------------------------------------------

Arizona has provided a reasonable justification for not requiring
cessation of tilling during high wind events. In the Microscale plan,
the State shows that it was windblown dust from an already tilled
agricultural field and not the active tilling of that field that
contributed to the 24-hour exceedance at West Chandler. See Microscale
plan, pp. 16. In the serious area plan, the State demonstrates that the
BMP general permit rule as adopted in combination with other adopted
measures provides for expeditious attainment of the 24-hour PM-10
standard in the Phoenix area and is not necessary for expeditious
attainment of the annual standard in the area. Finally, the State
through its BMP committee has determined that the requirement for one
BMP per category is the most effective economically and technologically
feasible control measure for agricultural sources in the Phoenix area.
Given all of this, the State has reasonably declined to mandate the
cessation of tilling during high winds when faced with an absence of
data that it would make the BMP rule more effective.\19\
---------------------------------------------------------------------------

\19\ We note that one exemption from Rule 403.1's
cessation of tilling requirement is when tilling activities result
in a net reduction of wind blown fugitive dust, an exemption that is
applicable only if wind blown fugitive dust is not visible from
tilled soil, but is visible from untilled soil within the same
agricultural parcel. Rule 403.1 (h)(4)(B). This exemption shows that
there are some situations when cessation of tilling during a high
wind event is actually counter-productive and thus it is not always
more effective to combine it with another BMP.
---------------------------------------------------------------------------

Comment: ACLPI asserts that because Arizona is seeking an extension
of the PM-10 nonattainment date to December 31, 2006, it must
show that its plan includes the most stringent measure for each source
category, including agriculture, citing CAA section 188(e). It then
contends that South Coast Rule 403 is significantly more stringent than
the general permit rule, noting that Rule 403 establishes six
categories of management practices and requires operators to implement
at least one of the listed practices in 5 of 6 categories (i.e.,
Active, Farm Yard Area, Track-Out, Unpaved Roads, and Storage Pile) and
three measures in the "Inactive" category. ACLPI claims
that when the cessation of tilling on high wind days is included, each
commercial farmer is required to implement a minimum of nine control
measures and that Arizona's program only requires a total of three
control measures. To qualify and obtain an extension of the attainment
date, the Arizona SIP must include agricultural measures that are at
least as stringent as Rule 403.
Response: Neither the CAA nor EPA policy requires that areas
seeking attainment date extensions include without exception the most
stringent measures for each source category. The CAA requires only that
the plan include the most stringent measures found in the
implementation plan of other States or used in practice that are
feasible in the area. See CAA section 188(e). We interpret the MSM
provision to not require any measure that is infeasible on
technological or economic grounds, any measure for insignificant source
categories, and any measure or group of measures that would not
contribute to expeditious attainment. See 24-hour standard proposal at
50282-84.
ACLPI is not correctly characterizing the requirements of the South
Coast's agricultural control measures (which are found in Rules 403 and
403.1). Agricultural operations are required to comply with the
provisions of Rule 403 unless the person responsible for such

[[Page 48730]]

operations voluntarily implements the conservation practices contained
in the most recent Rule 403 Handbook. See Rule 403 (h)(1)(B). The
Handbook, and not the rule itself, has the requirement to implement at
least one of the listed practices in 5 of 6 categories and three
measures in the Inactive category. A grower, however, only has to
implement practices for those categories of agricultural operations
that they actually have; thus if s/he does not have one of the activity
categories and/or inactive fields then the number of practices s/he
must implement is fewer. As we have noted above, the requirement for
cessation of tilling on high wind days applies only in the Coachella
Valley portion of the South Coast district and is a requirement on all
agricultural operations in the other portion of the district only when
a grower opts for using the Handbook to comply with Rule 403.
Therefore, ACLPI exaggerates the requirements of the South Coast
agricultural control program when it claims the program requires each
commercial farmer to implement a minimum of nine management
practices.\20\
---------------------------------------------------------------------------

\20\ We also note that for inactive fields, the Handbook
allows agricultural operators to comply with local jurisdiction
requirements in lieu of implementing three practices (Handbook,
section II, p. 4.) and that a field which has been withdrawn from
agricultural use in the Phoenix area becomes subject to MCESD Rule
310.01's BACM/MSM-level requirements for open areas and vacant lots.
All these control options demonstrate that the six categories/nine
practices versus three categories/three practices comparison is
misleading.
---------------------------------------------------------------------------

We agree that in general Rule 403 (or the Handbook) is likely to be
more stringent than the general permit rule. We, however, also agree,
as discussed below, with the State's assessment that the South Coast
requirements are infeasible for the Phoenix area and that the general
permit rule represents the most stringent economically and
technologically feasible agricultural control program for the area.
In assessing South Coast's requirements, the BMP Committee and ADEQ
determined that because of the lack of adequate technical information
concerning BMP costs and effectiveness, requiring at least one BMP for
the three agricultural categories adequately addressed agricultural
sources of PM-10 in the Maricopa County nonattainment area. ADEQ
concluded that:

The agricultural general permit cannot mirror South Coast Rule
403 for a variety of reasons. One main reason is that agriculture in
Maricopa area is primarily flood irrigated. The South Coast has
dryland, irrigated, and sprinkler irrigated agriculture. The actual
amount of irrigation water and frequency of irrigation can effect
wind erosion estimates and the effectiveness of different control
measures under different conditions. Therefore, the BMPs for
Maricopa County were based on practical applications during those
times when the fields were not flooded. Also, because the
application of more than one BMP at a time for a selected category
would only provide incremental PM-10 reductions, sometimes at
an uneconomical cost, flexibility was provided in the rule to allow
the expert (the farmer) to decide what BMP should be applied when
and where.

As we discussed in the proposal for the 24-hour standard (see 24-
hour standard proposal at 50268) and as we concluded in our original
FIP measure for the agricultural sector (63 FR 41332), the BMP
Committee found that agricultural PM-10 strategies must be based
on local factors because of the variety, complexity, and uniqueness of
farming operations and because agricultural sources vary by factors
such as regional climate, soil type, growing season, crop type, water
availability, and relation to urban centers.
While the Committee surveyed measures adopted in other geographic
areas, including South Coast, these measures were of limited utility in
determining what measures are available for the Maricopa County area.
Given the limited scientific information available and the myriad
factors that affect farming operations, the BMP Committee concluded
that requiring more than one BMP could not be considered
technologically justified and could cause an unnecessary economic
burden to farmers. BMP TSD, p. 18.
Adding to concerns about the economic feasibility of requiring more
BMPs per farming activity is the general uncertainty regarding the cost
of the BMPs and continued viability of agriculture in Maricopa County.
Between 1987 and 1997, the number of farms operating in Maricopa County
declined by approximately 30 percent and the amount of land farmed
declined by approximately 50 percent. This trend is expected to
continue. Finally, in order to justify additional requirements for
farming operations in the area beyond those in the general permit rule,
the BMP Committee determined that a significant influx of money and
additional research would be needed.
Based on all of these factors, the BMP Committee concluded that the
Handbook's control requirements were neither technologically nor
economically feasible for agricultural sources in Maricopa County and
therefore are not feasible for the Phoenix area. BMP TSD, p. 18.
We agree with the analysis of the BMP Committee. As noted
previously, the development of the general permit rule was a multi-year
endeavor involving an array of agricultural experts familiar with
Maricopa County agriculture. Maricopa County is only the second area in
the country where formal regulation of PM-10 emissions from the
agricultural sector has ever been attempted. We conclude that the Rule
403's and the Handbook's requirements are neither technologically nor
economically feasible for Maricopa County and thus Arizona need not
include them in the Phoenix serious area plan in order for us to grant
an attainment date extension under CAA section 188(e).
Comment: ACLPI claims that there is no justification for relaxing
the stringency of Rule 403 because virtually all of the control
measures listed in Rule 403 are in the Arizona rule and so it is clear
that their implementation is feasible. ACLPI asserts that Arizona's
contention that "the application of more than one BMP at a time
for a selected category would only provide for incremental PM-10
reductions sometimes at an uneconomical cost," is not supported
by any competent data, improperly delegates regulatory discretion to
the regulated community, and ignores the clear mandates of the Act.
Response: We agree that the many of the individual best management
practices in the Rule 403 Agricultural Handbook are also feasible
practices for the Phoenix area. Arizona, through the BMP committee,
also agreed and incorporated many of them into the general permit rule.
However, the feasibility and adoption of any one BMP has little
relevance here because neither Rule 403, the Handbook, nor the general
permit rule requires the implementation of any specific BMP, rather
they require the implementation of at least one BMP from a list of
possible BMPs for each of several categories of farm operations.
As has been noted many times before, little data is available on
the cost of implementing specific BMPs in the Phoenix area. Using what
little data was available and the technical expertise of local farmers,
state and federal agricultural agencies,\21\ and agricultural experts
from the University of Arizona, Arizona determined that requiring the
implementation at least one BMP for each of the three categories of

[[Page 48731]]

agricultural activities is the most stringent level of control that is
economically and technologically feasible for the Phoenix area. This
conclusion was arrived at only after a lengthy and open process and
only after taking into consideration South Coast's approach to
agricultural control. See 66 FR 3458, 34601.
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\21\ The BMP Committee is composed of five local farmers,
the Director of ADEQ, the Director of the Arizona Department of
Agriculture, the State Conservationist for the United States
Department of Agriculture's (USDA) Natural Resources Conservation
Service (NRCS) state office, the Dean of the University of Arizona's
College of Agriculture, and a soil scientist from the University of
Arizona.
---------------------------------------------------------------------------

We do not agree that the general permit rule improperly delegates
regulatory discretion to the regulated community. The general permit
rule follows the same general control format as Rules 310 and 310.01.
This format allows the regulated entity (e.g., construction site
operator, vacant lot owner, unpaved parking lot owner, etc.) to choose
from a list of options for controlling its source.\22\ For example, an
unpaved parking lot owner may pave, gravel, or apply a chemical
stabilizer. See Rule 310.01, section 303.1. This control format is the
standard model for fugitive dust rules and has developed over time
because of the need to impose effective but reasonable and feasible
controls on a large number of similar but distinct sources. For the
Phoenix serious area plan, we have found that the control measures
using this format provide for the implementation of BACM and the
inclusion of MSM for a number of significant source categories. As much
as (if not more so than) an unpaved parking lot owner or a vacant lot
owner, a grower is in the best position to determine which BMPs are
best and most effective for the conditions on his/her farm.
---------------------------------------------------------------------------

\22\ This control format is also used in South Coast's
fugitive dust rules, including Rules 403, 403.1, and 1186. We
approved these rules on December 9, 1998 (63 FR 67784).
---------------------------------------------------------------------------

Comment: ACLPI asserts that because the general permit rule fails
to require any specific control requirements, there is no way that the
State can know or meaningfully predict what the effect of the rule will
be and thus any estimated emissions reduction is entirely speculative
and thus inadequate under the CAA.
Response: As we noted in a previous comment, the general permit
rule follows the same standard control format used by many fugitive
dust rules, such as Rules 310 and 310.01 (and Rule 403 and the Rule 403
Agricultural Handbook). This format allows the regulated entity to
choose from a list of options for controlling its source.
Emission reductions from these types of rules need to be quantified
because they often constitute the primary control strategy needed to
demonstrate attainment and/or RFP. The accepted methodology for
quantifying them is to assume that some fraction of the regulated
sources will choose a particular control option. For example, the
assumption used in the Phoenix plan to quantify emission reductions
from the unpaved parking lot measure is that one third of the regulated
lots will be paved, one-third will be graveled, and one-third will be
chemically stabilized. See MAG TSD, p. V-17. Provided that the
assumptions are reasonable, we accept the resulting emission reductions
estimate.
To prepare the emission reductions estimates for the general permit
rule, ADEQ hired URS. To estimate the reductions, URS determined the
most likely implementation scenario. This scenario was based on
available data on the crops grown and their acreage in the Phoenix area
as well as on interviews of growers in the Phoenix area about which
BMPs they would most likely use in certain situations. The growers,
having intimate knowledge of the crops and growing conditions in the
area, are the technical experts on how the BMP rule will be
implemented. By going to the technical experts, URS and Arizona reduced
the level of uncertainty in the emission reduction estimates to the
extent practicable.
We believe that their approach is reasonable given the situation.
Most of the BMPs have never been applied in Maricopa County or
elsewhere, and until the BMPs are fully implemented and ADEQ has had
adequate time to evaluate their effectiveness, there will always be
some degree of uncertainty regarding actual emission reductions. While
it is possible that the reductions could be less than expected, it is
equally plausible that the reductions will be greater than expected.
We note that no matter how specifically a rule is written, no one
can ever know for certain what the future emission reductions from it
will be. Estimates of future emission reductions require assumptions
about future activities that are always speculative to a degree. In
making emission reduction estimates, we attempt to reduce the
uncertainties to the extent possible, but we can never totally
eliminate them.
Quantification of emission reductions from rules is a necessary
part of meeting the Act's requirements for reasonable further progress
and attainment demonstrations and quantitative milestones. Beyond
setting the requirements (and requiring attainment demonstrations be
based on air quality modeling, see, for example, CAA section
189(b)(1)(A)), the Act leaves it to EPA's expertise to determine what
constitutes technically acceptable demonstrations. As we have discussed
above, Arizona followed standard and accepted procedures for
quantifying emission reductions from the BMP general permit rule and as
a result we find the resulting estimates acceptable for the serious
area plan.
Comment: ACLPI disagrees with EPA's conclusion that the
metropolitan Phoenix serious area plan adequately demonstrates that
attainment by December 31, 2001 is impracticable because the plan fails
to adopt all BACM for significant sources, fails to implement some
measures in a timely manner or relies on mere commitments and
improperly excludes BACM for de minimis sources. ACLPI asserts that the
plan improperly fails to analyze whether the area would be in
attainment by the 2001 deadline if all BACM were adopted and
implemented on time.
Response: We have carefully reviewed the plan and have found that
it provides for the implementation of BACM, assures timely
implementation of measures, and relies on enforceable commitments only
where they are the only feasible means of providing for the
implementation of BACM as required by CAA section 189(b)(1)(B). See
annual standard proposal at 19984 and the 24-hour standard proposal at
50273.
As we have discussed previously, neither the CAA or EPA guidance
requires the implementation of all BACM. Both only require that a state
provide for the implementation of best available control measures on
its significant source categories. Both also allow the de minimis
sources to be exempted from the BACM requirement. See CAA section
189(b)(1)(B) and the Addendum at 42014.
Contrary to ACLPI's assertion, the plan does provide a clear
demonstration that even with the implementation of BACM on all source
categories including de minimis categories, the Phoenix area would not
be in attainment of either PM-10 standard by the end of 2001.
This demonstration is a necessary part of showing that the plan
correctly determines which source categories are de minimis and which
are significant. See MAG plan, pp. 9-9 to 9-15 and the
section "BACM Analysis Step 2, Model to Identify
Significant Sources" in the EPA TSD.
Comment: ACLPI disagrees with EPA's conclusion that the
metropolitan Phoenix serious area plan adequately demonstrates
attainment by the earliest date practicable after December 31, 2001
because the plan fails to adopt all feasible MSM, fails to implement
some measures in a timely manner or relies on mere commitments and
improperly excludes MSM for de minimis sources. ACLPI asserts that the
plan improperly

[[Page 48732]]

fails to analyze whether the area would be in attainment earlier if all
MSM were adopted and implemented in a timely manner.
Response: We have carefully reviewed the plan and have found that
it includes all feasible MSM to our satisfaction, assures timely
implementation of measures, and relies on enforceable commitments only
where they are the only feasible means of providing for the
implementation of MSM or other measures necessary for timely
attainment. See annual standard proposal at 19984 and the 24-hour
standard proposal at 50274. We note again that the Phoenix serious area
plan did not exclude any MSM on the basis of de minimis source
categories.
Comment: ACLPI comments that the plan fails to include contingency
measures, noting the purpose of contingency measures is to assure
continued progress toward attainment while the SIP is being revised if
a state fails to make RFP or attain by the applicable attainment date.
ACLPI asserts that if a state fails to make RFP or timely attain, the
obvious conclusion is that the currently implemented control measures
are insufficient and additional measures are needed and that this is
true regardless of whether the implemented measures were relied upon in
the RFP and attainment demonstrations and for this reason, EPA's
suggestion that the contingency measure requirement can be satisfied by
committed measures that are implemented but not relied upon in the
demonstrations defeats the purpose. ACLPI contends that the proposed
SIP must include contingency measures that will take effect without
further action by the State or Administrator and the SIP does not
include any such measures.
Response: The metropolitan Phoenix serious area plan does contain
contingency measures. For the annual standard, the plan relies on the
agricultural BMP general permit rule as a contingency measure. For the
24-hour standard, the plan relies on the paving or treatment of unpaved
roads measure. Both measures are currently being implemented but the
emission reductions from them are not necessary for demonstrating RFP
and attainment for the annual standard (general permit rule) and 24-
hour standard (unpaved road measures).
Failure to make RFP or attain does not necessarily mean that new
controls must be adopted. Failure to make RFP or attain can be the
result of the failure to implement already committed to or adopted
controls, delays in the implementation of control measures, and
noncompliance. In these cases, correcting the implementation problem or
noncompliance corrects the RFP or attainment failure.
There are a number of benefits to allowing and even encouraging the
early implementation of contingency measures. The chief benefit is that
their emission reductions and thus their public health benefit are
realized early. Another is that it allows states to build uncredited
cushions into their attainment and RFP demonstrations, a cushion which
makes actual failures to make progress or attain less likely.
Measures that have already been implemented clearly meet the
section 172(c)(9) requirement that contingency measures take effect
without further action by the State or Administrator.
Comment: ACLPI asserts that the Agricultural BMP general permit
rule cannot be used as a contingency measure because it is not a
"specific measure[ ]
to be undertaken if the area fails to
make reasonable further progress, or to attain the [NAAQS]
* * *" and there is nothing in the rule that is
triggered upon a showing of failure to make RFP. ACLPI quotes EPA
guidance at 60 FR 56129 that "[c]ontingency measures should
consist of other control measures that are not part of the area's
control strategy."
Response: We note that the Agricultural BMP general permit rule is
a contingency measure for the annual standard only. Emission reductions
from the rule are not necessary to demonstrate RFP or expeditious
attainment, and therefore, the rule is not part of Arizona's primary
control strategy for attaining the annual standard. Emission reductions
from the rule are necessary to demonstrate RFP and expeditious
attainment of the 24-hour standard and the State chose a different
measure, the unpaved road measure, to serve as the contingency measure
for the 24-hour standard.
Nothing in CAA section 172(c)(9) requires that contingency measure
be triggered only if there is a failure to make RFP or to attain.
Contingency measure must be undertaken if there is a failure to make
RFP or attain but the Act does not bar a state from using other
triggers as a reason to implement them, e.g., a determination that the
measure is needed for attainment of another standard or to meet another
CAA requirement. This is the case here; the BMP general permit rule is
both needed for attainment of the 24-hour standard and to meet the
CAA's BACM requirement.
Areas that must meet the BACM, MSM, and "attainment by the
earliest alternative date practicable" requirement are in a
difficult position when it comes to contingency measures. Adopted but
unimplemented contingency measures are likely to be feasible BACM and/
or MSM. We discussed this dilemma in the proposed approval for the 24-
hour standard at 24-hour standard proposal at 50279:

Certain core control measure requirements such as RACM, BACM,
and MSM may result in a state adopting and expeditiously
implementing more measures than are strictly necessary for
expeditious attainment and/or RFP. Because of this and because these
core requirements effectively require the implementation of all non-
trivial measures that are technologically and economically feasible
for the area, states are left with few, if any, substantive
unimplemented control measures. In fact, under the Act's PM-10
planning provisions, if there were a measure or set of measures that
were technologically and economically feasible and could
collectively generate substantial emission reductions, e.g., one
year's worth of RFP, then a state would be hard pressed to justify
withholding their implementation.
If we read the CAA to demand that the only acceptable
contingency measure are those that are adopted but not implemented,
then states face a difficult choice: adopt the controls for
immediate implementation and clearly meet the core control measure
requirements but fail the contingency measure requirement or adopt
the control measures but hold implementation in reserve to meet the
contingency measure requirement but potentially fail the core
control measure requirements.
However, states do not need to face this difficult choice if we
read the CAA to allow adopted and implemented measures to serve as
contingency measures, provided that those measures' emission
reductions are not needed to demonstrate expeditious attainment and/
or RFP. There is nothing in the language of section 172(c)(9) that
prohibits this interpretation.

ACLPI cites as EPA guidance, our 1995 proposed approval of the
moderate area PM-10 SIP for the Yakima, Washington nonattainment
area. This proposal, however, simply affirms our position here. In this
case, Washington State used as a contingency measure for the Yakima
area, a wood stove buy back program. At the time we proposed to approve
it as a contingency measure, the program had been in operation for more
than two years and had already replaced 70 wood stoves. We proposed to
approve it as a contingency measure because the emission reductions
from the program were "100 percent overcontrol," that is,
not necessary for attainment. See 60 FR 56129, 56132 (November 7,
1995). We finalized this approval at 63 FR 5269 (February 2, 1998).

[[Page 48733]]

V. Final Actions

A. Approval of the Serious Area Plan

We are taking final action to approve the following elements of the
serious area PM-10 plan for the metropolitan Phoenix area.
For the annual standard:

------------------------------------------------------------------------
SIP submittal and Cite for proposed
CAA provision (cite) date approval
------------------------------------------------------------------------
Base year emission inventory MAG plan, February Annual standard
(section 172(c)(3)). 16, 2000. proposal at 19970.
Demonstration that the plan
provides for the
implementation of RACM and
BACM for each significant
source category (sections
189(a)(1)(c) and
189(b)(1)(b)):
· On-road MAG plan, February Annual standard
motor vehicles. 16, 2000. proposal at 19973
and 24-hour
standard proposal
at 50258.
· Non-road MAG plan, February 24-hour standard
motor vehicles. 16, 2000. proposal at 20260.
· Paved road MAG plan, February Annual standard
dust. 16, 2000. proposal at 50274.
· Unpaved MAG plan, February Annual standard
parking lots. 16, 2000. proposal at 19976.
· Disturbed MAG plan, February Annual standard
vacant lots. 16, 2000. proposal at 19977.
· Unpaved MAG plan, February Annual standard
roads. 16, 2000. proposal at 19978.
· Constructio MAG plan, February 24-hour standard
n activities and sites. 16, 2000. proposal at 50265.
· Agriculture BMP TSD, June 13, 24-hour standard
(BACM only). 2001. proposal at 50268.
· Residential MAG plan, February Annual standard
wood combustion. 16, 2000. proposal at 19982.
· Secondary MAG plan, February Annual standard
ammonium nitrate 16, 2000. proposal at 19982.
sources.
Demonstration of the MAG plan, February Annual standard
impracticability of 16, 2000. proposal 19984.
attainment by 2001 where
the State has applied for
an attainment date
extension under section
188(e) (section
189(b)(1)(A) (ii)).
Demonstration of attainment MAG plan, February Annual standard
by the most expeditious 16, 2000. proposal 19985.
alternative date
practicable (section
189(b)(1)(A) (ii)).
Demonstration of reasonable MAG plan, February Annual standard
further progress (section 16, 2000. proposal 19988.
172(c)(2)).
Quantitative Milestones MAG plan, February Annual standard
(section 189(c)). 16, 2000. proposal 19988.
Inclusion of the most MAG plan, February Annual standard
stringent measures (section 16, 2000 (except proposal at 19984
188(e)). for agricultural (except for
sources); BMP TSD, agricultural
June 13, 2001 sources); 24-hour
(agricultural standard proposal
sources). at 50268
(agricultural
sources).
Demonstration that major MAG plan, February Annual standard
sources of PM-10 precursors 16, 2000. proposal 19971.
such as nitrogen oxides and
sulfur dioxide do not
contribute significantly to
violations (section 189(e)).
Contingency measures MAG plan, February 24-hour standard
(section 172(c)(9)). 16, 2000 as revised proposal at 50279.
by BMP TSD, June
13, 2001.
Transportation conformity MAG plan, February Annual standard
budget (section 176(c)). 15, 2000. proposal at 19970.
Provisions for assuring MAG plan, February Annual standard
adequate resources, 16, 2000 (for all proposal at 19988
personnel, and legal categories for both (except for
authority to carry out the standards except agriculture
plan (section for agriculture sources), 24-hour
110(a)(2)(E)(i)). sources). standard proposal
at 50280.
-----------------------------
For the 24-hour standard:
------------------------------------------------------------------------
Base year emission MAG plan, February Annual standard
inventory (section 16, 2000. proposal at 19970.
172(c)(3)).
Demonstration that the plan
provides for the
implementation of RACM and
BACM for each significant
source category (sections
189(a)(1)(c) and
189(b)(1)(b)):
· On-road MAG plan, February 24-hour standard
motor vehicles. 16, 2000. proposal at 50258
and 50259.
· Non-road MAG plan, February 24-hour standard
motor vehicles. 16, 2000. proposal at 50259.
· Paved road MAG plan, February 24-hour standard
dust. 16, 2000. proposal at 50260.
· Unpaved MAG plan, February 24-hour standard
parking lots. 16, 2000. proposal at 50263.
· Disturbed MAG plan, February 24-hour standard
vacant lots. 16, 2000. proposal at 50263.
· Unpaved MAG plan, February 24-hour standard
roads. 16, 2000. proposal at 50264.
· Constructio MAG plan, February 24-hour standard
n activities and sites. 16, 2000. proposal at 50265.
· Agriculture BMP TSD, June 13, 24-hour standard
(BACM only). 2001. proposal at 50268.
· Residential MAG plan, February 24-hour standard
wood combustion. 16, 2000. proposal at 50271.
· Secondary MAG plan, February 24-hour standard
ammonium nitrate 16, 2000. proposal at 50271.
sources.
Demonstration of the MAG plan, February 24-hour standard
impracticability of 16, 2000 proposal at 50273.
attainment by 2001 where (regional); BMP
the State has applied for TSD, June 13, 2001
an attainment date (Gilbert and West
extension under section Chandler).
188(e) (section
189(b)(1)(A) (ii)).
Demonstration of attainment Mag plan, February 24-hour standard
by the most expeditioius 16, 2000 proposal at 50275.
alternative date (regional); BMP
practicable (section TSD, June 13, 2001
189(b)(1)(A)(ii)). (Gilbert and West
Chandler).

[[Page 48734]]

Demonstration of reasonable BMP TSD, June 13, 24-hour standard
further progress (section 2001. proposal at 50278.
172(c)(2)).
Quantitative Milestones BMP TSD, June 13, 24-hour standard
(section 189(c)). 2001. proposal at 50279.
Inclusion of the most MAG plan, February 24-hour standard
stringent measures (section 16, 2000 except for proposal at 50274.
188(e)). (agricultural
sources) BMP TSD,
June 13, 2001
(agricultural
sources).
Demonstration that major MAG plan, February 24-hour standard
sources of PM-10 16, 2000. proposal at 50257.
precursors such as nitrogen
oxides and sulfur dioxide
do not contribute
significantly to violations
(section 189(e)).
Contingency measures MAG plan, February 24-hour standard
(section 172(c)(9)). 16, 2000 as revised proposal at 50279.
by BMP TSD, June
13, 2001.
Transportation conformity MAG plan, February 24-hour standard
budget (section 176(c)). 15, 2000. proposal at 50256.
Provisions for assuring MAG plan, February 24-hour standard
adequate resources, 16, 2000 (except proposal at 50280.
personnel, and legal for agriculture
authority to carry out the sources).
plan (section
110(a)(2)(E)(i)).
------------------------------------------------------------------------

B. Extension of the Attainment Date

As authorized by CAA section 188(e), we are granting Arizona's
request for a five-year extension of the date for attaining both the
annual and 24-hour PM-10 standards. Our decision to grant the
extension is based on our determination that the State has met the
necessary requirements for granting an extension of the attainment date
under CAA section 188(e). See annual standard proposal at 19988 and 24-
hour standard proposal at 50278. The five-year extension means that the
statutory attainment date for both standards in the Phoenix
nonattainment area is now December 31, 2006.

C. Approvals of Rules and Commitments

We are also approving the following rules and commitments that we
proposed for approval in the annual standard proposal at 65 FR 19964:

------------------------------------------------------------------------
Rule/commitment (Date of adoption of
revision) Submittal date
------------------------------------------------------------------------
MCESD Rule 310 (Revised February 16, 2000). March 2, 2000.
MCESD Rule 310.01 (Adopted February 16, March 2, 2000.
2000).
Maricopa County Residential Woodburning January 28, 2000.
Ordinance (Revised November 17, 1999).
------------------------------------------------------------------------

We are also approving numerous resolutions adopted in 1997, 1998,
and 1999 by the cities and town of the metropolitan Phoenix area as
well as by the Arizona Department of Transportation, Regional Public
Transportation Agency, and ADEQ. Finally, we are approving Maricopa
County's commitments including the revised commitments adopted on
December 19, 2001 and submitted on January 8, 2002.
CAA section 110(l) prohibits us from approving a revision to the
applicable implementation plan if that revision would interfere with
any applicable requirement concerning attainment and RFP or any other
applicable requirement of the Act. We interpret section 110(l) to mean,
among other things, that we cannot approve a plan revision if that
revision would mean that the state's plans would no longer provide for
attainment or RFP as these are required by the CAA or if the revision
would mean that the State's plans would no longer meet another
applicable requirement of the Act.
We are revising the Arizona SIP to incorporate the amended Rule
310, Rule 310.01 and the Maricopa County Residential Woodburning
Ordinance in place of the previous version of Rule 310 approved in
August, 1997 and of the ordinance approved in November, 1999. In
addition to the effect on attainment and RFP, the "other
applicable requirement of the Act" that we are concerned with
here are the Act's requirements for implementation of RACM and BACM and
the inclusion in the plan of MSM.
We are approving the expeditious attainment and RFP demonstrations
for both PM-10 standards in the Phoenix serious area plan. These
demonstrations are in part dependent on approval of the revised Rule
310, Rule 310.01, and the woodburning ordinance.
We are also finding that the Phoenix serious area plan provides for
the implementation of RACM and BACM and the inclusion of the MSM for
the sources subject to these rules and ordinance (construction sites,
unpaved roads, unpaved parking lots, and disturbed vacant lands, and
residential wood burning). Again, these findings are in large part
dependent on approval of the revised Rule 310 and Rule 310.01. We,
therefore, find that the approval of the revised Rule 310, Rule 310.01,
and the Residential Woodburning Restrictions Ordinance will not
interfere with Arizona PM-10 applicable implementation plan's
compliance with the Clean Air Act's requirements for attainment, RFP,
implementation of RACM and BACM, and inclusion of MSM.\23\
---------------------------------------------------------------------------

\23\ Because the woodburning restrictions ordinance is
also a provision in the State's carbon monoxide SIP, we have also
considered the impact on the CO plan of approving the revised
version. The revision to the ordinance strengthens its PM-10
provisions but does not make changes to its CO provisions;
therefore, its approval will not interfere CO SIP's provisions for
attainment, RFP, or RACM.
---------------------------------------------------------------------------

D. Correction of Previous SIP Disapprovals

We are finding that Arizona has corrected the deficiencies that
resulted in the following disapprovals:

[[Page 48735]]

----------------------------------------------------------------------------------------------------------------
Disapproved element Date and cite of disapproval Correction
----------------------------------------------------------------------------------------------------------------
Implementation of RACM and BACM for unpaved roads, August 4, 1997 62 FR 41856, Approved RACM and BACM
unpaved parking lots, disturbed vacant lots, and 41862. demonstration for the
agriculture (24-hour standard). affected categories.\1\
Demonstration of attainment and RFP for the West August 4, 1997 62 FR 41856, Approved attainment and RFP
chandler site (24-hour standard). 41862. demonstration.
Demonstration of attainment and RFP for the August 4, 1997 62 FR 41856, Approved attainment and RFP
Gilbert site (24-hour). 41862. demonstration.
Implementation of RACM (annual standard).......... August 3, 1998 63 FR 41326, Approved RACM demonstration.
41329.
Demonstration of attainment (moderate area August 3, 1998 63 FR 41326, Approved attainment
deadline, annual standard). 41329. demonstration.
----------------------------------------------------------------------------------------------------------------
\1\ We approved the RACM demonstration for agricultural sources on October 11, 2001 at 66 FR 51869.

The correction of the deficiencies that caused the last two listed
disapprovals also permanently lifts the offset sanction currently
imposed but stayed on the Phoenix area and ends the clock for
imposition of the highway funding sanction.
The full approval of the metropolitan Phoenix serious area
PM-10 plan also ends the FIP clock started by the February 6,
1998 finding that the State had failed to submit the plan by the
required deadline. See 63 FR 9423 (February 23, 1998).

VI. Administrative Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a "significant regulatory action" and
therefore is not subject to review by the Office of Management and
Budget. For this reason, this action is also not subject to Executive
Order 32111, "Actions Concerning Regulations That Significantly
Affect Energy Supply, Distribution, or Use" (66 FR 28355, May 22,
2001). This action merely approves state law as meeting federal
requirements and imposes no additional requirements beyond those
imposed by state law. Accordingly, the Administrator certifies that
this rule will not have a significant economic impact on a substantial
number of small entities under the Regulatory Flexibility Act (5 U.S.C.
601 et seq.). Because this rule approves pre-existing requirements
under state law and does not impose any additional enforceable duty
beyond that required by state law, it does not contain any unfunded
mandate or significantly or uniquely affect small governments, as
described in the Unfunded Mandates Reform Act of 1995 (Public Law
104-4).
This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175
(59 FR 22951, November 9, 2000). This action also does not have Federalism
implications because it does not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132
(64 FR 43255, August 10, 1999). This action merely approves a state plan
and rules implementing a Federal standard, and does not alter the
relationship or the distribution of power and responsibilities
established in the Clean Air Act. This rule also is not subject to
Executive Order 13045, "Protection of Children from Environmental
Health Risks and Safety Risks" (62 FR 19885, April 23, 1997),
because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
The Congressional Review Act, 5 U.S.C. section 801 et seq., as
added by the Small Business Regulatory Enforcement Fairness Act of
1996, generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. EPA will submit a report containing this
rule and other required information to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States
prior to publication of the rule in the Federal Register. A major rule
cannot take effect until 60 days after it is published in the Federal
Register. This action is not a "major rule" as defined by 5
U.S.C. section 804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by September 23, 2002. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter, Reporting
and recordkeeping requirements.

Dated: January 14, 2002.
Wayne Nastri,
Regional Administrator, Region 9.

Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:

PART 52 [AMENDED]

1. The authority citation for Part 52 continues to read as follows:

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

[[Page 48736]]

Subpart D Arizona

2. Section 52.120 is amended by adding paragraphs (c)(99), (100),
(101), and (102) to read as follows:

Sec. 52.120 Identification of plan.

* * * * *
(c) * * *
(99) Plan revisions submitted on January 28, 2000 by the Governor's
designee.
(i) Incorporation by reference.
(A) Maricopa County, Arizona.
(1) Residential Woodburning Restriction Ordinance adopted on
November 17, 1999.
(100) Plan revisions submitted on February 16, 2000 by the
Governor's designee.
(i) Incorporation by reference.
(A) Maricopa Association of Governments, Maricopa County, Arizona.
(1) Resolution to Adopt the Revised MAG 1999 Serious Area
Particulate Plan for PM-10 for the Maricopa County Nonattainment
Area (including Exhibit A, 2 pages), adopted on February 14, 2000.
(B) City of Avondale, Arizona.
(1) Resolution No. 1711-97; A Resolution of the City Council
of the City of Avondale, Maricopa County, Arizona, To Implement
Measures in the MAG 1997 Serious Area Particulate Plan for PM-10
and MAG 1998 Serious Area Carbon Monoxide Plan for the Maricopa County
Area (including Exhibit A, 14 pages), adopted on September 15, 1997.
(2) Resolution No. 1949-99; A Resolution of the Council of
the City of Avondale, Maricopa County, Arizona, Implementing Measures
in the MAG 1998 Serious Area Particulate Plan for PM-10 for the
Maricopa County Area (including Exhibit A, 7 pages), adopted on
February 16, 1999.
(C) Town of Buckeye, Arizona.
(1) Resolution No. 15-97; A Resolution of the Town Council of
the Town of Buckeye, Maricopa County, Arizona, To Implement Measures in
the MAG 1997 Serious Area Carbon Monoxide Plan for the Maricopa County
Area (including Exhibit A, 5 pages), adopted on October 7, 1997.
(D) Town of Carefree, Arizona.
(1) Town of Carefree Resolution No. 97-16; A Resolution of
the Mayor and Common Council of the Town of Carefree, Arizona, To
Implement Measures in the MAG 1997 Serious Area Particulate Plan for
PM-10 and MAG 1998 Serious Area Carbon Monoxide Plan for the
Maricopa County Area (including Exhibit A, 3 pages), adopted on
September 2, 1997.
(2) Town of Carefree Resolution No. 98-24; A Resolution of
the Mayor and Common Council of the Town of Carefree, Arizona, To
Implement Measures in the MAG 1998 Serious Area Particulate Plan for
PM-10 for the Maricopa County Area (including Exhibit A, 4
pages), adopted on September 1, 1998.
(3) Town of Carefree Ordinance No. 98-14; An Ordinance of the
Town of Carefree, Maricopa County, Arizona, Adding Section 10-4
to the Town Code Relating to Clean-Burning Fireplaces, Providing
Penalties for Violations (3 pages), adopted on September 1, 1998.
(E) Town of Cave Creek, Arizona.
(1) Resolution R97-28; A Resolution of the Mayor and Town
Council of the Town of Cave Creek, Maricopa County, Arizona,
Implementing Measures in the MAG 1997 Serious Area Particulate Plan for
PM-10 and MAG 1998 Serious Area Carbon Monoxide Plan for the
Maricopa County Area (including Exhibit A, 4 pages), adopted on
September 2, 1997.
(2) Resolution R98-14; A Resolution of the Mayor and Town
Council of the Town of Cave Creek, Maricopa County, Arizona, To
Implement Measures in the MAG 1998 Serious Area Particulate Plan for
PM-10 for the Maricopa County Area (including Exhibit A, 1 page),
adopted on December 8, 1998.
(F) City of Chandler, Arizona.
(1) Resolution No. 2672; A Resolution of the City Council of the
City of Chandler, Arizona To Implement Measures in the MAG 1997 Serious
Area Particulate Plan for PM-10 and MAG 1998 Serious Area Carbon
Monoxide Plan for the Maricopa County Area (including Exhibit A, 16
pages), adopted on August 14, 1997.
(2) Resolution No. 2929; A Resolution of the City Council of the
City of Chandler, Arizona, To Implement Measures in the MAG 1998
Serious Area Particulate Plan for PM-10 for the Maricopa County
Area (including Exhibit A, 9 pages), adopted on October 8, 1998.
(G) City of El Mirage, Arizona.
(1) Resolution No. R97-08-20; Resolution To Implement
Measures in the MAG 1997 Serious Area Particulate Plan for PM-10
and MAG 1998 Serious Area Carbon Monoxide Plan for the Maricopa County
Area (including Exhibit A, 8 pages), adopted on August 28, 1997.
(2) Resolution No. R98-08-22; A Resolution of the Mayor
and Common Council of the City of El Mirage, Arizona, Amending
Resolution No. R98-02-04 To Implement Measures in the MAG
1997 Serious Area Particulate Plan for PM-10 for the Maricopa
County Area (including Exhibit A, 5 pages), adopted on August 27,1998.
(3) Resolution No. R98-02-04; A Resolution To Implement
Measures in the MAG 1997 Serious Area Particulate Plan for PM-10
for the Maricopa County Area (including Exhibit A, 5 pages), adopted on
February 12,1998.
(H) Town of Fountain Hills, Arizona.
(1) Resolution No. 1997-49; A Resolution of the Common
Council of the Town of Fountain Hills, Arizona, Adopting the MAG 1997
Particulate Plan for PM-10 and MAG 1998 Serious Area Carbon
Monoxide Plan for the Maricopa County Area and Committing to Certain
Implementation Programs (including Exhibit B, 5 pages and cover),
adopted on October 2, 1997.
(2) Town of Fountain Hills Resolution No. 1998-49; Resolution
To Implement Measures in the MAG 1998 Serious Area Particulate Plan for
PM-10 for the Maricopa County Area (including Exhibit A, 7
pages), adopted on October 1, 1998. [Incorporation Note: Incorporated
materials are pages 4 to 10 of the 11-page resolution package; pages 1
and 2 are cover sheets with no substantive content and page 11 is a
summary of measures previously adopted by the Town of Fountain Hills.]
(I) Town of Gilbert, Arizona.
(1) Resolution No. 1817; A Resolution of the Common Council of the
Town of Gilbert, Maricopa County, Arizona, Authorizing the
Implementation of the MAG 1997 Serious Area Particulate Plan for
PM-10 and the MAG Serious Area Carbon Monoxide Plan for the
Maricopa County Area (including 15 pages of attached material), adopted
on June 10, 1997.
(2) Resolution No. 1864; A Resolution of the Common Council of the
Town of Gilbert, Arizona, Implementing Measures in the MAG 1997 Serious
Area Particulate Plan for PM-10 for the Maricopa County Area
(including Attachment A, 5 pages), adopted on November 25, 1997.
[Incorporation note: Attachment A is referred to as Exhibit A in the
text of the Resolution.]
(3) Ordinance 1066; An Ordinance of the Common Council of the Town
of Gilbert, Arizona Amending the Code of Gilbert by Amending Chapter 30
Environment, by adding New Article II Fireplace Restrictions
Prescribing Standards for Fireplaces, Woodstoves, and Other Solid-Fuel
Burning Devices in New Construction; Providing for an Effective Date of
January 1, 1999; Providing for Repeal of Conflicting Ordinances;
Providing for Severability (3 pages), adopted on November 25, 1997.
(4) Resolution No. 1939: A Resolution of the Common Council of the
Town of Gilbert, Arizona, Expressing its Commitment to Implement
Measures in

[[Page 48737]]

the Maricopa Association of Governments (MAG) 1998 Serious Area
Particulate Plan for PM-10 for the Maricopa County Area
(including Attachment A, 5 pages), adopted on July 21, 1998.
[Incorporation note: Attachment A is referred to as Exhibit A in the
text of the Resolution.]
(J) City of Glendale, Arizona.
(1) Resolution No. 3123 New Series; A Resolution of the Council of
the City of Glendale, Maricopa County, Arizona, Implementing Measures
in the MAG 1997 Serious Area Particulate Plan for PM-10 and MAG
1998 Serious Area Carbon Monoxide Plan for the Maricopa County Area
(including Exhibit A, 20 pages), adopted on June 10, 1997.
(2) Resolution No. 3161 New Series; A Resolution of the Council of
the City of Glendale, Maricopa County, Arizona, Implementing Measures
in the MAG 1997 Serious Area Particulate Plan for PM-10 for the
Maricopa County Area (including Exhibit A, 6 pages), adopted on October
28, 1997.
(3) Resolution No. 3225 New Series; A Resolution of the Council of
the City of Glendale, Maricopa County, Arizona, Implementing Measures
in the MAG 1998 Serious Area Particulate Plan for PM-10 for the
Maricopa County Area (including Exhibit A, 9 pages), adopted on July
28, 1998.
(K) City of Goodyear, Arizona.
(1) Resolution No. 97-604 Carbon Monoxide Plan; A Resolution
of the Council of the City of Goodyear, Maricopa County, Arizona,
Implementing Measures in the MAG 1997 Serious Area Particulate Plan for
PM-10 and MAG 1998 Serious Area Carbon Monoxide Plan for the
Maricopa County Area (including Exhibit A, 21 pages), adopted on
September 9. [Incorporation note: Adoption year not given on the
resolution but is understood to be 1997 based on resolution number.]
(2) Resolution No. 98-645; A Resolution of the Council of the
City of Goodyear, Maricopa County, Arizona, Implementing Measures in
the MAG 1998 Serious Area Particulate Plan for PM-10 for the
Maricopa County Area (including Attachment III, 7 pages), adopted on
July 27, 1998.
(L) City of Mesa, Arizona.
(1) Resolution No. 7061; A Resolution of the City Council of the
City of Mesa, Maricopa County, Arizona, to Implement Measures in the
MAG 1997 Serious Area Particulate Plan for PM-10 and MAG 1998
Serious Area Carbon Monoxide Plan for the Maricopa County Area
(including Exhibit A, 13 pages plus index page), adopted on June 23,
1997.
(2) Resolution No. 7123; A Resolution of the City Council of the
City of Mesa, Maricopa County, Arizona, to Implement Measures in the
MAG 1997 Serious Area Particulate Plan for PM-10 for the Maricopa
County Area (including Exhibit A, 10 pages), adopted on December 1,
1997.
(3) Resolution No. 7360; A Resolution of the City Council of the
City of Mesa, Maricopa County, Arizona, to Implement Measures in the
MAG Serious Area Particulate Plan for PM-10 for the Maricopa
County Area (including Exhibit A, 8 pages), adopted on May 3, 1999.
(4) Ordinance No. 3434; An Ordinance of the City Council of the
City of Mesa, Maricopa County, Arizona, Relating to Fireplace
Restrictions Amending Title 4, Chapter 1, Section 2 Establishing a
Delayed Effective Date; and Providing Penalties for Violations (3
pages), adopted on February 2, 1998.
(M) Town of Paradise Valley, Arizona.
(1) Resolution Number 913; A Resolution of the Town of Paradise
Valley, to Implement Measures in the MAG 1997 Serious Area Particulate
Plan for PM-10 and MAG 1998 Serious Area Carbon Monoxide Plan for
the Maricopa County Area (including Exhibit A, 9 pages), adopted on
October 9, 1997.
(2) Resolution Number 945; A Resolution of the Mayor and Town
Council of the Town of Paradise Valley, Arizona, to Implement Measures
in the MAG 1998 Serious Area Particulate Plan for PM-10 for the
Maricopa County Area (including Exhibit A, 5 pages), adopted on July
23, 1998.
(3) Ordinance Number 454; An Ordinance of the Town of Paradise
Valley, Arizona, Relating to Grading and Dust Control, Amending Article
5-13 of the Town Code and Sections 5-13-1 Through
5-13-5, Providing Penalties for Violations and Severability
(5 pages), adopted on January 22, 1998. [Incorporation note: There is
an error in the ordinance's title, ordinance amended only sections
5-13-1 to 5-13-4; see section 1 of the
ordinance.]
(4) Ordinance Number 450; An Ordinance of the Town of Paradise
Valley, Arizona, Adding Section 5-1-7 to the Town Code
Relating to Clean-Burning Fireplaces, Providing Penalties for
Violations (3 pages), adopted on December 18, 1997.
(N) City of Peoria, Arizona.
(1) Resolution No. 97-37; A Resolution of the Mayor and
Council of the City of Peoria, Arizona, to Implement Measures in the
MAG 1997 Serious Area Particulate Plan for PM-10 and MAG 1998
Serious Area Carbon Monoxide Plan for the Maricopa County Area
(including Exhibits A, 5 pages, and B, 19 pages), adopted on June 17,
1997.
(2) Resolution No. 97-113; A Resolution of the Mayor and
Council of the City of Peoria, Arizona, to Implement Measures in the
MAG 1997 Serious Area Particulate Plan for PM-10 for the Maricopa
County Area and Directing the Recording of This Resolution with the
Maricopa County Recorder and Declaring an Emergency (including Exhibit
A, 8 pages plus index page), adopted on October 21, 1997.
(3) Resolution No. 98-107; A Resolution of the Mayor and
Council of the City of Peoria, Arizona, to Approve and Authorize the
Acceptance to Implement Measures in the MAG 1998 Serious Area
Particulate Plan for PM-10 for the Maricopa County Area
(including Exhibit A, 7 pages), adopted on July 21, 1998.
(O) City of Phoenix, Arizona.
(1) Resolution No. 18949; A Resolution Stating the City's Intent to
Implement Measures to Reduce Air Pollution (including Exhibit A, 19
pages), adopted on July 2, 1997.
(2) Resolution No. 19006; A Resolution Stating the City's Intent to
Implement Measures to Reduce Air Pollution (including Exhibit A, 13
pages), adopted on November 19, 1997.
(3) Ordinance No. G4037; An Ordinance Amending Chapter 39, Article
2, Section 39-7 of the Phoenix City Code by Adding Subsection G
Relating to Dust Free Parking Areas; and Amending Chapter 36, Article
XI, Division I, Section 36-145 of the Phoenix City Code Relating
to Parking on Non-Dust Free Lots, adopted on July 2, 1997 (5 pages).
(4) Resolution No. 19141; A Resolution Stating the City's Intent to
Implement Measures to Reduce Particulate Air Pollution (including
Exhibit A, 10 pages), adopted on September 9, 1998.
(5) Ordinance No. G4062; An Ordinance Amending the Phoenix City
Code By Adding A New Chapter 40 "Environmental
Protections," By Regulating Fireplaces, Wood Stoves and Other
Solid-Fuel Burning Devices and Providing that the Provisions of this
Ordinance Shall Take Effect on December 31, 1998 (5 pages), adopted on
December 10, 1997.
(P) Town of Queen Creek, Arizona.
(1) Resolution 129-97; A Resolution of the Town Council of
the Town of Queen Creek, Maricopa County, Arizona to Implement Measures
in the MAG 1997 Serious Area Particulate Plan for PM-10 and MAG
1998 Serious Area Carbon Monoxide Plan for the Maricopa County Area
(including Exhibit A, 3 pages), adopted on June 4, 1997.
(2) Resolution 145-97; A Resolution of the Town Council of
the Town of

[[Page 48738]]

Queen Creek, Maricopa County, Arizona to Implement Measures in the MAG
1997 Serious Area Particulate Plan for PM-10 for the Maricopa
County Area (including Exhibit A, 1 page), adopted on November 5, 1997.
(3) Resolution 175-98; A Resolution of the Town Council of
the Town of Queen Creek, Maricopa County, Arizona to Implement Measures
in the MAG 1998 Serious Area Particulate Plan for the Maricopa County
Area (including Exhibit A, 9 pages), adopted on September 16, 1998.
(Q) City of Scottsdale, Arizona.
(1) Resolution No. 4864; A Resolution of the City of Scottsdale,
Maricopa County, Arizona, To Implement Measures in the MAG 1997 Serious
Area Particulate Plan for PM-10 and MAG 1998 Serious Area Carbon
Monoxide Plan for the Maricopa County Area: Stating the Council's
Intent to Implement Certain Control Measures Contained in that Plan
(including Exhibit A, 21 pages), adopted on August 4, 1997.
(2) Resolution No. 4942; Resolution of the Scottsdale City Council
To Implement Measures in the MAG 1997 Serious Area Particulate Plan for
PM-10 for the Maricopa County Area (including Exhibit A, 13
pages), adopted on December 1, 1997.
(3) Resolution No. 5100; A Resolution of the City of Scottsdale,
Maricopa County, Arizona, To Strengthen Particulate Dust Control and
Air Pollution Measures in the Maricopa County Area (including Exhibit
A, 10 pages), adopted on December 1, 1998.
(R) City of Surprise, Arizona.
(1) Resolution No. 97-29; A Resolution to Implement Measures
in the MAG 1997 Serious Area Particulate Plan for PM-10 and MAG
1998 Serious Area Carbon Monoxide Plan for the Maricopa County Area
(including Exhibit A, 4 pages), adopted on June 12, 1997.
(2) Resolution No. 97-67; A Resolution to Implement Measures
in the MAG 1997 Serious Area Particulate Plan for PM-10 for the
Maricopa County Area (including Exhibit A, 3 pages), adopted on October
23, 1997.
(3) Resolution No. 98-51; A Resolution to Implement Measures
in the MAG 1997 Serious Area Particulate Plan for PM-10 for the
Maricopa County Area (including Exhibit A, 6 pages), adopted on
September 10, 1998.
(s) City of Tempe, Arizona.
(1) Resolution No. 97.39; Resolution to Implement Measures in the
MAG 1997 Serious Area Particulate Plan for PM-10 and MAG 1998
Serious Area Carbon Monoxide Plan for the Maricopa County Area
(including Exhibit A, 18 pages), adopted on June 12, 1997.
(2) Resolution No. 97.71, Resolution of the Council of the City of
Tempe Stating Its Intent to Implement Measures in the MAG 1997 Serious
Area Particulate Plan for PM-10 for the Maricopa County Area
(including Exhibit A, 6 pages), adopted on November 13, 1997.
(3) Resolution No. 98.42, Resolution of the Council of the City of
Tempe Implementing Measures in the MAG 1998 Serious Area Particulate
Plan for PM-10 for the Maricopa County Area (including Exhibit A,
8 pages), adopted on September 10, 1998.
(T) City of Tolleson, Arizona.
(1) Resolution No. 788, A Resolution of the Mayor and City Council
of the City of Tolleson, Maricopa County, Arizona, Implementing
Measures in the Maricopa Association of Governments (MAG) 1997 Serious
Area Particulate Plan for PM-10 and MAG 1998 Serious Area Carbon
Monoxide Plan for the Maricopa County Area (including Exhibit A, 12
pages), adopted on June 10, 1997.
(2) Resolution No. 808, A Resolution of the Mayor and City Council
of the City of Tolleson, Maricopa County, Arizona, Implementing
Measures in the Maricopa Association of Governments (MAG) 1998 Serious
Area Particulate Plan for PM-10 for the Maricopa County Area
(including Exhibit A), adopted on July 28, 1998.
(3) Ordinance No. 376, N.S., An Ordinance of the City of Tolleson,
Maricopa County, Arizona, Amending Chapter 7 of the Tolleson City Code
by Adding a New Section 7-9, Prohibiting the Installation or
Construction of a Fireplace or Wood Stove Unless It Meets the Standards
Set Forth Herein (including Exhibit A, 4 pages), adopted on December 8,
1998.
(U) Town of Wickenburg, Arizona.
(1) Resolution No. 1308, Resolution To Implement Measures in the
MAG 1997 Serious Area Particulate Plan for PM-10 and MAG 1998
Serious Area Carbon Monoxide Plan for the Maricopa County Area
(including Exhibit A, 4 pages), adopted on August 18, 1997.
(V) Town of Youngtown, Arizona.
(1) Resolution No. 97-15, Resolution To Implement Measures in
the MAG 1997 Serious Particulate Plan for PM-10 and MAG 1998
Serious Area Carbon Monoxide Plan for the Maricopa County Area
(including Exhibit A, 4 pages), adopted on September 18, 1997.
(2) Resolution No. 98-15: Resolution To Implement Measures in
the MAG 1998 Serious Area Particulate Plan for PM-10 for the
Maricopa County Area (including Exhibit A, 8 pages), adopted on August
20, 1998.
(3) Resolution No 98-05: Resolution Stating Intent to Work
Cooperatively with Maricopa County to Control the Generation of
Fugitive Dust Pollution (including Exhibit A, 2 pages), adopted
February 19, 1998.
(W) Maricopa County, Arizona.
(1) Resolution to Implement Measures in the MAG 1997 Serious Area
Particulate Plan for PM-10 and MAG 1A998 Serious Area Carbon
Monoxide Plan for the Maricopa County Area (including Exhibit A, 16
pages), adopted on June 25, 1997. [Incorporation note:
"1A998" error in the original.]
(2) Resolution to Implement Measures in the MAG 1997 Serious Area
Particulate Plan for PM-10 for the Maricopa County Area
(including Exhibit A, 9 pages), adopted on November 19, 1997.
(3) Resolution to Implement Measures in the MAG 1998 Serious Area
Particulate Plan for PM-10 for the Maricopa County Area
(including Exhibit A, 10 pages), adopted on February 17, 1999.
(4) Resolution to Implement Measures in the MAG 1999 Serious Area
Particulate Plan for PM-10 for the Maricopa County Area
(including Exhibit A, 10 pages), adopted on December 15, 1999.
(X) Arizona Department of Transportation, Phoenix, Arizona.
(1) Resolution to Implement Measures in the MAG 1997 Serious Area
Particulate Plan for PM-10 and MAG 1998 Serious Area Carbon
Monoxide Plan for the Maricopa County Area (including Exhibit A, 24
pages plus index page), adopted on June 20, 1997.
(2) Resolution to Implement Measures in the MAG 1998 Serious Area
Particulate Plan for PM-10 for the Maricopa County Area
(including Exhibit A, 8 pages), adopted on July 17, 1998.
(Y) Regional Public Transportation Authority, Phoenix, Arizona.
(1) Resolution #9701: Resolution to Implement Measures in the
MAG 1997 Serious Area Particulate Plan for PM-10 and MAG 1998
Serious Area Carbon Monoxide Plan for the Maricopa County Area
(including Exhibit A, 23 pages), adopted on June 12, 1997.
(Z) State of Arizona.
(1) Arizona Revised Statute Section 49-542(F)(7) as added in
Section 31 of Arizona Senate Bill 1002, 42nd Legislative Session, 7th
Special Session (1996), approved by the Governor July 18, 1996.
(101) Plan revisions submitted on March 2, 2000, by the Governor's
designee.

[[Page 48739]]

(i) Incorporation by reference.
(A) Maricopa County Environmental Services Department.
(1) Rule 310 revised on February 16, 2000.
(2) Rule 310.01 adopted on February 16, 2000.
(3) Appendix C revised on February 16, 2000.
(102) Plan revisions submitted on January 8, 2002, by the
Governor's designee.
(i) Incorporation by reference.
(1) Maricopa County, Arizona.
(1) Resolution to Update Control Measure 6 in the Revised MAG 1999
Serious Area Particulate Plan for PM-10 for the Maricopa County
Area (including Exhibit A, 2 pages), adopted on December 19, 2001.
* * * * *

3. Section 52.123 is amended by removing and reserving paragraph
(f)(1)(i)and adding paragraph (j) to read as follows:

Sec. 52.123 Approval status.

* * * * *
(j) The Administrator is approving the following elements of the
Metropolitan Phoenix PM-10 Nonattainment Area Serious Area
PM-10 Plan as contained in Revised Maricopa Association of
Governments 1999 Serious Area Particulate Plan for PM-10 for the
Maricopa County Nonattainment Area, February 2000, submitted February
16, 2000 and Maricopa County PM-10 Serious Area State
Implementation Plan Revision, Agricultural Best Management Practices
(BMP), ADEQ, June 2000, submitted on June 13, 2001:
(1) 1994 Base year emission inventory pursuant to Clean Air Act
section 172(c)(3).
(2) The Provisions for implementing on all significant source
categories reasonably available control measures (except for
agricultural sources) and best available control measures for the
annual and 24-hour PM-10 NAAQS pursuant to section Clean Air Act
sections 189(a)(1)(c) and 189(b)(1)(b)).
(3) The demonstration of the impracticability of attainment by
December 31, 2001 for the annual and 24-hour PM-10 NAAQS pursuant
to Clean Air Act section 189(b)(1)(A)(ii).
(4) The demonstration of attainment by the most expeditious
alternative date practicable for the annual and 24-hour PM-10
NAAQS pursuant to Clean Air Act section 189(b)(1)(A)(ii).
(5) The demonstration of reasonable further progress for the annual
and 24-hour PM-10 NAAQS pursuant to Clean Air Act section
172(c)(2).
(6) The quantitative milestones for the annual and 24-hour
PM-10 NAAQS pursuant to Clean Air Act section 189(c).
(7) The inclusion of the most stringent measures for the annual and
24-hour PM-10 NAAQS pursuant to Clean Air Act section 188(e).
(8) The demonstration that major sources of PM-10 precursors
do not contribute significantly to violations for the annual and 24-
hour PM-10 NAAQS pursuant to Clean Air Act section 189(e).
(9) The contingency measures for the annual and 24-hour PM-10
NAAQS pursuant to Clean Air Act section 172(c)(9).
(10) The transportation conformity budget for the annual and 24-
hour PM-10 NAAQS pursuant to Clean Air Act section 176(c).
(11) The provisions for assuring adequate resources, personnel, and
legal authority to carry out the plan for the annual and 24-hour
PM-10 NAAQS pursuant to Clean Air Act section 110(a)(2)(E)(i).

Sec. 52.124 [Amended]

4. Section 52.124 is amended by removing and reserving paragraphs
(b) and (c).

[FR Doc. 02-18171 Filed 7-24-02; 8:45 am]
BILLING CODE 6560-50-P

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Approval and Promulgation of Implementation Plans; Arizona Maricopa County PM-10 Nonattainment Area; Serious Area Plan for Attainment of the PM-10 Standards

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