Approval and Promulgation of Implementation Plans-Maricopa County (Phoenix) PM-10 Nonattainment Area; Serious Area Plan for Attainment of the 24-Hour PM-10 Standard; Clean Air Act Section 189(d), 54806-54821 [2010-22616]
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submittal and anticipates no adverse
comments. A detailed rationale for the
approval is set forth in the direct final
rule. If no adverse comments are
received in response to this rule, no
further activity is contemplated. If EPA
receives adverse comments, the direct
final rule will be withdrawn and all
public comments received will be
addressed in a subsequent final rule
based on this proposed rule. EPA will
not institute a second comment period.
Any parties interested in commenting
on this action should do so at this time.
Please note that if EPA receives adverse
comment on an amendment, paragraph,
or section of this rule and if that
provision may be severed from the
remainder of the rule, EPA may adopt
as final those provisions of the rule that
are not the subject of an adverse
comment. For additional information,
see the direct final rule which is located
in the Rules section of this Federal
Register.
Dated: August 26, 2010.
Bharat Mathur,
Acting Regional Administrator, Region 5.
[FR Doc. 2010–22339 Filed 9–8–10; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R09–OAR–2010–0715; FRL–9200–3]
Approval and Promulgation of
Implementation Plans—Maricopa
County (Phoenix) PM–10
Nonattainment Area; Serious Area Plan
for Attainment of the 24-Hour PM–10
Standard; Clean Air Act Section 189(d)
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
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AGENCY:
EPA is proposing to approve in part
and disapprove in part State
implementation plan (SIP) revisions
submitted by the State of Arizona to
meet the Clean Air Act (CAA)
requirements applicable to the serious
Maricopa County (Phoenix)
nonattainment area (Maricopa area).
These requirements apply to the
Maricopa area following EPA’s June 6,
2007 finding that the area failed to meet
its December 31, 2006 serious area
deadline to attain the national ambient
air quality standards (NAAQS) for
particulate matter of ten microns or less
(PM–10). Under CAA section 189(d),
Arizona was required to submit a plan
by December 31, 2007 providing for
expeditious attainment of the PM–10
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NAAQS and for an annual emission
reduction in PM–10 or PM–10
precursors of not less than five percent
per year until attainment (189(d) plan).
EPA is proposing to disapprove
provisions of the 189(d) plan for the
Maricopa area because they do not meet
applicable CAA requirements for
emissions inventories as well as for
attainment, five percent annual
emission reductions, reasonable further
progress and milestones, and
contingency measures. EPA is also
proposing to disapprove the 2010 motor
vehicle emission budget in the 189(d)
plan as not meeting the requirements of
CAA section 176(c) and 40 CFR
93.118(e)(4). EPA is also proposing a
limited approval and limited
disapproval of State regulations for the
control of PM–10 from agricultural
sources. Finally, EPA is proposing to
approve various provisions of State
statutes relating to the control of PM–10
emissions in the Maricopa area.
DATES: Any comments must arrive by
October 12, 2010.
ADDRESSES: Submit comments,
identified by docket number EPA–R09–
OAR–2010–0715, by one of the
following methods:
1. Federal eRulemaking Portal:
https://www.regulations.gov. Follow the
on-line instructions.
2. E-mail: nudd.gregory@epa.gov.
3. Mail or deliver: Gregory Nudd (Air2), U.S. Environmental Protection
Agency Region IX, 75 Hawthorne Street,
San Francisco, CA 94105–3901.
Instructions: All comments will be
included in the public docket without
change and may be made available
online at https://www.regulations.gov,
including any personal information
provided, unless the comment includes
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. Information that
you consider CBI or otherwise protected
should be clearly identified as such and
should not be submitted through
https://www.regulations.gov or e-mail.
https://www.regulations.gov is an
‘‘anonymous access’’ system, and EPA
will not know your identity or contact
information unless you provide it in the
body of your comment. If you send email directly to EPA, your e-mail
address will be automatically captured
and included as part of the public
comment. If EPA cannot read your
comment due to technical difficulties
and cannot contact you for clarification,
EPA may not be able to consider your
comment.
Docket: The index to the docket for
this action is available electronically at
https://www.regulations.gov and in hard
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copy at EPA Region IX, 75 Hawthorne
Street, San Francisco, California. While
all documents in the docket are listed in
the index, some information may be
publicly available only at the hard copy
location (e.g., copyrighted material), and
some may not be publicly available in
either location (e.g., CBI). To inspect the
hard copy materials, please schedule an
appointment during normal business
hours with the contact listed in the FOR
FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT:
Gregory Nudd, U.S. EPA Region 9, 415–
947–4107, nudd.gregory@epa.gov or
https://www.epa.gov/region09/air/
actions.
SUPPLEMENTARY INFORMATION:
Throughout this document, the terms
‘‘we,’’ ‘‘us,’’ and ‘‘our’’ mean U.S. EPA.
Table of Contents
I. PM–10 Air Quality Planning in the
Maricopa Area
II. Overview of Applicable CAA
Requirements
III. Evaluation of the 189(d) Plan’s
Compliance With CAA Requirements
IV. Summary of Proposed Actions
V. Statutory and Executive Order Reviews
I. PM–10 Air Quality Planning in the
Maricopa Area
The NAAQS are standards for certain
ambient air pollutants set by EPA to
protect public health and welfare. PM–
10 is among the ambient air pollutants
for which EPA has established healthbased standards. PM–10 causes adverse
health effects by penetrating deep in the
lungs, aggravating the cardiopulmonary
system. Children, the elderly, and
people with asthma and heart
conditions are the most vulnerable.
On July 1, 1987 EPA revised the
health-based national ambient air
quality standards (52 FR 24672),
replacing the standards for total
suspended particulates with new
standards applying only to particulate
matter up to ten microns in diameter
(PM–10). At that time, EPA established
two PM–10 standards, annual standards
and 24-hour standards. Effective
December 18, 2006, EPA revoked the
annual PM–10 standards but retained
the 24-hour PM–10 standards. 71 FR
61144 (October 17, 2006). The 24-hour
PM–10 standards of 150 micrograms per
cubic meter (μg/m3) are attained when
the expected number of days per
calendar year with a 24-hour average
concentration above 150 μg/m3, as
determined in accordance with
appendix K to 40 CFR part 50, is equal
to or less than one. 40 CFR 50.6 and 40
CFR part 50, appendix K.
On the date of enactment of the 1990
Clean Air Act Amendments (CAA or the
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Act), many areas, including the
Maricopa area, meeting the
qualifications of section 107(d)(4)(B) of
the amended Act were designated
nonattainment by operation of law. 56
FR 11101 (March 15, 1991). The
Maricopa area is located in the eastern
portion of Maricopa County and
encompasses the cities of Phoenix,
Mesa, Scottsdale, Tempe, Chandler,
Glendale, as well as 17 other
jurisdictions and unincorporated
County lands. The nonattainment area
also includes the town of Apache
Junction in Pinal County. EPA codified
the boundaries of the Maricopa area at
40 CFR 81.303.
Once an area is designated
nonattainment for PM–10, section 188
of the CAA outlines the process for
classifying the area as moderate or
serious and establishes the area’s
attainment deadline. In accordance with
section 188(a), at the time of
designation, all PM–10 nonattainment
areas, including the Maricopa area, were
initially classified as moderate.
A moderate PM–10 nonattainment
area must be reclassified to serious PM–
10 nonattainment by operation of law if
EPA determines after the applicable
attainment date that, based on air
quality, the area failed to attain by that
date. CAA sections 179(c) and 188(b)(2).
On May 10, 1996, EPA reclassified the
Maricopa area as a serious PM–10
nonattainment area. 61 FR 21372.
As a serious PM–10 nonattainment
area, the Maricopa area acquired a new
attainment deadline of no later than
December 31, 2001. CAA section
188(c)(2). However CAA section 188(e)
allows states to apply for up to a 5-year
extension of that deadline if certain
conditions are met. In order to obtain
the extension, there must be a showing
that: (1) Attainment by the applicable
attainment date would be impracticable;
(2) the state complied with all
requirements and commitments
pertaining to the area in the
implementation plan for the area; and
(3) the state demonstrates that the plan
for the area includes the most stringent
measures (MSM) that are included in
the implementation plan of any state or
are achieved in practice in any state,
and can feasibly be implemented in the
specific area. Arizona requested an
attainment date extension under CAA
section 188(e) from December 31, 2001
to December 31, 2006.
On July 25, 2002, EPA approved the
serious PM–10 plan for the Maricopa
area as meeting the requirements for
such areas in CAA sections 189(b) and
(c), including the requirements for
implementation of best available control
measures (BACM) in section
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189(b)(1)(B) and MSM in section 188(e).
In the same action, EPA granted
Arizona’s request to extend the
attainment date for the area to December
31, 2006. 67 FR 48718. This final action,
as well as the two proposals preceding
it, provide a more detailed discussion of
the history of PM–10 planning in the
Maricopa area. See 65 FR 19964 (April
13, 2000) and 66 FR 50252 (October 2,
2001).
On June 6, 2007, EPA found that the
Maricopa area failed to attain the 24hour PM–10 NAAQS by December 31,
2006 (72 FR 31183) and required the
submittal of a new plan meeting the
requirements of section 189(d) by
December 31, 2007.
On December 19, 2007, the Maricopa
Association of Governments (MAG)
adopted the ‘‘MAG 2007 Five Percent
Plan for PM–10 for the Maricopa County
Nonattainment Area.’’ In this proposal,
we refer to this plan as the ‘‘189(d)
plan.’’ On December 21, 2007 the
Arizona Department of Environmental
Quality (ADEQ) submitted the 189(d)
plan and two Pinal County resolutions.1
MAG adopted and ADEQ submitted this
SIP revision in order to address the CAA
requirements in section 189(d).
CAA section 110(k)(1) requires EPA to
determine whether a SIP submission is
complete within 60 days of receipt. This
section also provides that any plan that
has not been affirmatively determined to
be complete or incomplete shall become
complete within 6 months by operation
of law. EPA’s completeness criteria are
found in 40 CFR part 51, appendix V.
The 189(d) plan submittal became
complete by operation of law on June
21, 2008.
II. Overview of Applicable CAA
Requirements
As a serious PM–10 nonattainment
area that failed to meet its applicable
attainment date, December 31, 2006, the
Maricopa area is subject to CAA section
189(d) which provides that the state
shall ‘‘submit within 12 months after the
applicable attainment date, plan
revisions which provide for attainment
of the PM–10 air quality standard and,
from the date of such submission until
attainment, for an annual reduction of
PM–10 or PM–10 precursor emissions
within the area of not less than 5
percent of the amount of such emissions
as reported in the most recent inventory
prepared for the area.’’
1 Subsequently, in June 4, 2008 and February 23,
2009 letters from Nancy C. Wrona, ADEQ, to
Deborah Jordan, EPA, the State submitted
‘‘Supplemental Information to Section 189(d) 5%
Reasonable Further Progress PM–10 SIP Revisions
for the Maricopa County and Apache Junction
(Metropolitan Phoenix) Nonattainment Area.’’
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The general planning and control
requirements for all nonattainment
plans are found in CAA sections 110
and 172. EPA has issued a General
Preamble 2 and Addendum to the
General Preamble 3 describing our
preliminary views on how the Agency
intends to review SIPs submitted to
meet the CAA’s requirements for the
PM–10 NAAQS. The General Preamble
mainly addresses the requirements for
moderate nonattainment areas and the
Addendum, the requirements for serious
nonattainment areas. EPA has also
issued other guidance documents
related to PM–10 plans which are cited
as necessary below. In addition, EPA
addresses the adequacy of the motor
vehicle budget for transportation
conformity (CAA section 176(c)) in this
proposed plan action. The PM–10 plan
requirements addressed by this
proposed action are summarized below.
A. Emissions Inventories
CAA section 172(c)(3) requires that an
attainment plan include a
comprehensive, accurate, and current
inventory of actual emissions from all
sources of the relevant pollutants.
B. Attainment Demonstration
The attainment deadline applicable to
an area that misses the serious area
attainment date is as soon as
practicable, but no later than 5 years
from the publication date of the
nonattainment finding notice. EPA may,
however, extend the attainment
deadline to the extent it deems
appropriate for a period no greater than
10 years from the publication date,
‘‘considering the severity of
nonattainment and the availability and
feasibility of pollution control
measures.’’ CAA sections 179(d)(3) and
189(d).
C. Five Percent (5%) Requirement
A 189(d) plan must provide for an
annual reduction of PM–10 or PM–10
precursor emissions within the area of
not less than 5% of the amount of such
emissions as reported in the most recent
inventory prepared for the area.
2 ‘‘State Implementation Plans; General Preamble
for the Implementation of Title I of the Clean Air
Act Amendments of 1990,’’ 57 FR 13498 (April 16,
1992) (General Preamble) and 57 FR 18070 (April
28, 1992).
3 ‘‘State Implementation Plans for Serious PM–10
Nonattainment Areas, and Attainment Date Waivers
for PM–10 Nonattainment Areas Generally;
Addendum to the General Preamble for the
Implementation of Title I of the Clean Air Act
Amendments of 1990,’’ 59 FR 41998 (August 16,
1994) (Addendum).
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D. Reasonable Further Progress and
Quantitative Milestones
CAA section 172(c)(2) requires that
implementation plans demonstrate
reasonable further progress (RFP) as
defined in section 171(1). Section 171(1)
defines RFP as ‘‘such annual
incremental reductions in emissions of
the relevant air pollutant as are required
by this part [part D of title I] or may
reasonably be required by the
Administrator for the purpose of
ensuring attainment of the applicable
national ambient air quality standard by
the applicable date.’’
Section 189(c)(1) requires the plan to
contain quantitative milestones which
will be achieved every 3 years and
which will demonstrate that RFP is
being met.
E. Contingency Measures
CAA section 172(c)(9) requires that
implementation plans provide for ‘‘the
implementation of specific measures to
be undertaken if the area fails to make
reasonable further progress, or to attain
the [NAAQS] by the attainment date
applicable under this part [part D of title
I]. Such measures are to take effect in
any such case without further action by
the State or the Administrator.’’
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F. Transportation Conformity and Motor
Vehicle Emissions Budgets
Transportation conformity is required
by CAA section 176(c). Our conformity
rule (40 CFR part 93, subpart A) requires
that transportation plans, programs, and
projects conform to state air quality
implementation plans and establishes
the criteria and procedures for
determining whether or not they do so.
Conformity to a SIP means that
transportation activities will not
produce new air quality violations,
worsen existing violations, or delay
timely attainment of the NAAQS or any
interim milestone. Once a SIP that
contains motor vehicle emissions
budgets (MVEBs) has been submitted to
EPA, and EPA has found it adequate,
these budgets are used for determining
conformity: emissions from planned
transportation activities must be less
than or equal to the budgets.
G. Adequate Legal Authority and
Resources
CAA section 110(a)(2)(E)(i) requires
that implementation plans provide
necessary assurances that the state (or
the general purpose local government)
will have adequate personnel, funding
and authority under state law.
Requirements for legal authority are
further defined in 40 CFR part 51,
subpart L (51.230–51.232) and for
resources in 40 CFR 51.280. States and
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responsible local agencies must also
demonstrate that they have the legal
authority to adopt and enforce
provisions of the SIP and to obtain
information necessary to determine
compliance. SIPs must also describe the
resources that are available or will be
available to the State and local agencies
to carry out the plan, both at the time
of submittal and during the 5-year
period following submittal of the SIP.
III. Evaluation of the 189(d) Plan’s
Compliance With CAA Requirements
A. Emissions Inventories
CAA section 172(c)(3) requires all
nonattainment area plans to contain a
comprehensive, accurate, and current
inventory of emissions from all sources
of the relevant pollutants in the
geographic area encompassed in the
plan. EPA believes that the inventories
submitted by Arizona as part of the
189(d) plan for the Maricopa area are
comprehensive and current, but are not
sufficiently accurate as discussed below.
MAG developed the 189(d) plan using
the ‘‘2005 Periodic Emissions Inventory
for the Maricopa County, Arizona
Nonattainment Area,’’ May 2007 (2005
Periodic Inventory). 189(d) plan,
appendices, volume one, appendix B,
exhibit 1. This inventory was developed
by the Maricopa County Air Quality
Department (MCAQD) as the baseline
inventory for the area. 189(d) plan,
p. 3–2.
MAG used economic growth estimates
to project 2007, 2008, 2009 and 2010
emissions inventories for the area from
the 2005 Periodic Inventory baseline.
MAG then used these projected
inventories to calculate the 5%
reduction target required by section
189(d) and as the baseline for the RFP
demonstration required by section
189(c).4 See 189(d) plan, appendices,
volume three, ‘‘Technical Document in
Support of the MAG 2007 Five Percent
Plan for PM–10 for the Maricopa County
Nonattainment Area,’’ (189(d) plan
TSD), chapter II.
The 2005 Periodic Inventory prepared
for the Maricopa area describes and
quantifies the annual and daily
emissions of PM–10 from point, area,
nonroad, on-road, and
nonanthropogenic sources in the 2,880
square mile nonattainment area.5 The
4 The 189(d) plan projects that the Maricopa area
will attain the PM–10 standard by December 31,
2010. For the 5% demonstration, the plan projects
emission reductions in 2008, 2009 and 2010. The
RFP demonstration shows annual emission
reductions in a downward linear trend from 2007
to 2010. See 189(d) plan, chapters 7 and 8, and
discussions of these demonstrations below.
5 The 2005 Periodic Inventory in the 189(d) plan
also includes data on PM–10 precursors. However,
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2005 Periodic Inventory indicates that
the dominant sources of PM–10
emissions in the Maricopa area are
construction-related fugitive dust,
including residential, commercial, road
and other land clearing (38 percent);
paved road dust, including trackout (16
percent); unpaved roads (10 percent);
and windblown dust (9 percent). 2005
Periodic Inventory, table 1.6–11.
EPA has evaluated the base year
inventory relied on by MAG in light of
the three criteria in section 172(c)(3)
and our conclusions follow.
Current: The base year, 2005, is a
reasonably current year, considering the
length of time needed to develop an
inventory and thereafter to develop a
plan based on it. The 2005 Periodic
Inventory was the most recent inventory
available when the 189(d) plan was
developed.
Comprehensive: The 189(d) plan’s
inventories are sufficiently complete.
All of the relevant source categories are
quantified.
Accurate: The 2005 Periodic
Inventory is not sufficiently accurate for
the purposes of the 189(d) plan. As
discussed below, this inventory and the
subsequent year inventories that MAG
derived from it overestimate the
baseline emissions for construction and
other sources. The accuracy of the
baseline inventory is particularly
important for this plan because it relies
heavily on reductions from improving
the effectiveness of existing rules 6 for
construction and other sources in order
to meet the CAA’s 5%, RFP and
attainment requirements. See 189(d)
plan, chapters 7 and 8.
MCAQD Rule 310 requires control
measures for dust generating activities
such as excavation, construction,
demolition and bulk material handling.
According to the 2005 Periodic
Inventory, the majority of emissions
subject to control under Rule 310 are
from residential, commercial and road
a scientific analysis of the particulate matter found
on filters on exceedance days indicates that the vast
majority of PM–10 on these days is directly emitted
PM–10 such as soil dust. See attachment, ‘‘On
speciated PM in the Salt River industrial area in
2002,’’ dated January 22, 2010, to E-mail from Peter
Hyde, Arizona State University, to Gregory Nudd,
EPA, July 30, 2010. Therefore, the 189(d) plan
appropriately focuses on directly emitted PM–10.
6 Rule effectiveness is an estimate of the ability
of a regulatory program to achieve all of the
emission reductions that could have been achieved
by full compliance with the applicable regulations
at all sources at all times. EPA requires a state to
account for rule effectiveness when estimating
emissions from source categories that are subject to
regulations that reduce emissions. See ‘‘Emissions
Inventory Guidance for Implementation of Ozone
and Particulate Matter National Ambient Air
Quality Standards (NAAQS) and Regional Haze
Regulations,’’ EPA–454/R–05–001, November 2005
(2005 Emissions Inventory Guidance), p. B–3.
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construction. Measure #8 in the 189(d)
plan is a commitment to implement
proactive and complaint based
inspections during night-time and on
weekends and is a telling example of
how the 189(d) plan depends primarily
on improving Rule 310 effectiveness to
demonstrate the required annual 5%
reductions and RFP. The plan asserts
that Measure #8 will reduce PM–10
emissions by 1,884 tons per year (tpy).
189(d) plan, p. 7–3. Of that, 1,694 tpy
are attributed to increases in
compliance, and therefore in the
effectiveness, of Rule 310. 189(d) plan
TSD, p. III–5. This pattern is repeated in
Measures #2, #3, #9, #10, #16, and #44,
with a large majority of the 189(d) plan’s
total emissions reductions derived from
increased compliance with Rule 310.
This pattern is further detailed in table
2 below.
For the 2005 Periodic Inventory,
MCAQD used a set of 63 sample
inspections of sources subject to Rule
310 in order to estimate its
effectiveness.7 An analysis of these
inspections yielded an estimated rule
effectiveness of 51 percent. However, an
analysis conducted by MCAQD of the
entire database of over 11,000 relevant
inspections during the time period of
the sample inspections yielded an
estimated rule effectiveness of 64.5
percent. In other words, examination of
the larger database suggests that a
significantly higher percentage of
sources were in compliance, and
accordingly the aggregate emissions
inventory for this source category could
be proportionately smaller than that
suggested by the smaller set of sample
inspections. While MCAQD conducted
this analysis in 2010, after the
development of the 189(d) plan, the data
and the method were available at the
time it produced the 2005 Periodic
Inventory.8 Table 1 below shows the
impact of these two different rule
effectiveness values on the estimate of
fugitive dust emissions from
construction sources in the Maricopa
area. The data in table 1 are from the
emission rate back-casting analysis
conducted by MCAQD in 2010.9
TABLE 1—IMPACT OF RULE 310 EFFECTIVENESS METHODOLOGY ON ESTIMATED EMISSIONS FROM CONSTRUCTION
ACTIVITY
Rule effectiveness
(percent)
Estimation method
Sample Rule 310 inspections (63 total inspections between July and December 2006) ..............................
All Rule 310 inspections (over 11,000 between July 2006 and June 2007) ..................................................
Estimated 2005
emissions for
construction
activity
(tons per year)
51
64.5
32,130
24,968
Difference in emissions ...................................................................................................................................................................
7,162
(¥22%)
EPA believes that analysis of the full
database of 11,000 Rule 310 inspections
provides a more accurate measure of
rule effectiveness than using a sample of
63 inspections. This is because the 63
inspections may not be representative of
the entire population of sources covered
by the rule. The larger data set is much
more likely to be free of sample biases.
Therefore, based on this analysis of the
larger data set, EPA has determined that
the initial estimate of rule effectiveness
for Rule 310 was not accurate.
There is a similar inaccuracy in the
rule effectiveness calculations for
MCAQD Rule 310.0110 for unpaved
parking lots, unpaved roads and similar
sources of fugitive dust emissions. For
the 2005 Periodic Inventory, MCAQD
used a set of 124 sample inspections to
estimate the effectiveness of Rule
310.01. 2005 Periodic Inventory,
appendix 2.2. An analysis of these
inspections yielded an estimated rule
effectiveness of 68 percent. However, an
analysis conducted by MCAQD of the
entire database of over 4,500 relevant
inspections during the time period of
the sample inspections yielded an
estimated rule effectiveness of 90
percent. See Poppen Email.
The significance of the inventory
inaccuracies discussed above is
graphically depicted in table 2:
TABLE 211—MEASURES TO IMPROVE COMPLIANCE WITH RULES 310 AND 310.01 COMPARED TO ALL MEASURES
SUPPORTING THE ATTAINMENT, 5% AND RFP DEMONSTRATIONS
2008
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Total reductions from attainment, 5% and RFP measures [tpy] ...............................................................................
Reductions from measures to improve rule effectiveness of Rule 310 ....................................................................
Reductions from measures to improve rule effectiveness of Rule 310.01 ...............................................................
% of reductions from such measures ........................................................................................................................
6,603
4,658
360
76%
2009
2010
15,422
11,292
1,061
80%
19,840
15,244
1,063
82%
As shown in table 2, the 189(d) plan
is designed to achieve the additional
reductions in emissions required for the
attainment, 5% and RFP demonstrations
primarily through improvements in rule
effectiveness for the sources regulated
7 2005 Periodic Inventory, appendix 2.2, ‘‘Rule
Effectiveness Study for the Maricopa County Rules
310, 310.01, and 316.’’
8 The data from the 2010 analysis were from
inspections conducted at the time the original rule
effectiveness calculation was being developed, so
that information should have been in the MCAQD’s
database. The analytical method was a hybrid of a
simple average of the results in the inspection
database and the 2005 Emissions Inventory
Guidance.
9 E-mail from Matthew Poppen, MCAQD, to
Gregory Nudd, EPA, ‘‘Back-casting of RE rates,’’
April 19, 2010 (Poppen E-mail).
10 EPA is also concerned that the method MCAQD
used to estimate rule effectiveness for non-metallic
mineral processing and other sources subject to
Rule 316 is dependent on qualitative factors rather
than compliance data.
11 This data summary was compiled from the
emission reduction calculations found in the 189(d)
plan TSD, chapter III.
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by Rules 310 and 310.01. The
inaccuracies in the baseline emissions
inventory were carried through into the
future year emission inventories and the
calculations of emission reductions for
those demonstrations.
Moreover, the underestimation of the
effectiveness of Rules 310 and 310.01
resulted in a control strategy with a high
probability of failure because the over-
emphasis on achieving emission
reductions from the sources regulated
by these rules likely resulted in a
corresponding de-emphasis on emission
reductions from other sources
contributing to the nonattainment
problem in the Maricopa area. In table
3 below we compare the projected
percentage of 2010 emissions
attributable to certain source categories
before implementation of the 189(d)
plan’s controls to the projected
percentage of emission reductions
attributed to controls for these
categories in 2010. The source
categories are those contributing more
than 5% to the projected 2010 inventory
of annual PM–10 emissions. See 189(d)
TSD, pp. II–17 and chapter III.
TABLE 3—COMPARISON OF THE 2010 EMISSIONS REDUCTIONS EXPECTED FROM THE CONTROL MEASURES TO THE
PROPORTION OF 2010 EMISSIONS FOR PRINCIPAL SOURCES OF PM–10 IN THE NONATTAINMENT AREA
Percentage of
pre-control
2010 emissions
Source category
Construction .....................................................................................................................................................
Paved Roads (including trackout) ...................................................................................................................
Unpaved Roads ...............................................................................................................................................
Fuel Combustion and Fires .............................................................................................................................
Windblown dust from vacant land ...................................................................................................................
Other Sources (<5% each) ..............................................................................................................................
As can be seen from this comparison,
the plan’s emphasis on reducing
emissions from the construction
industry is out of proportion to that
source category’s relative contribution
to the projected 2010 inventory.
For the reasons discussed above, EPA
is proposing to disapprove under CAA
section 110(k)(3) the 2005 baseline
emissions inventory in the 189(d) plan
and all of the projected inventories as
not meeting the requirements of section
172(c)(3).
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B. Measures in the 189(d) Plan
1. Introduction
The 189(d) plan contains 53 measures
designed to reduce emissions of PM–10.
A detailed description and
implementation schedule for each
measure is provided in chapter 6 of the
plan. Of the 53 measures, 25 measures
are intended to support the attainment,
RFP and 5% demonstrations provided
in the plan, and 9 are contingency
measures. These measures incorporate
differing strategies to target emissions
from a variety of activities within the
Maricopa area. The remaining measures
are included to represent additional
efforts by the State and local
jurisdictions to reduce emissions
beyond those quantified in the plan. As
those measures are implemented, the
189(d) plan provides that a more
detailed assessment of the air quality
benefits may be developed and reported
in the future.
EPA is proposing action on the
measures in the 189(d) plan that
constitute mandatory directives to the
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regulated community or to various local
jurisdictions to adopt certain legislative
requirements. These measures typically
involve emissions reductions that can
be reasonably quantified, and/or
regulatory components that are
enforceable. The 189(d) plan does not
take specific emission reduction credits
for the additional measures referred to
above where the ability to quantify
emission reductions was considered to
be limited.
In reviewing a statute, regulation, or
rule for SIP approval, EPA looks to
ensure that the provision is enforceable
as required by CAA section 110(a), is
consistent with all applicable EPA
guidance, and does not relax existing
SIP requirements as required by CAA
sections 110(l) and 193. Guidance and
policy documents that we use to
evaluate enforceability and PM–10 rules
include the following:
1. ‘‘Issues Relating to VOC Regulation
Cutpoints, Deficiencies, and Deviations;
Clarification to Appendix D of
November 24, 1987 Federal Register
Notice,’’ (Blue Book), notice of
availability published in the May 25,
1988 Federal Register.
2. ‘‘Guidance Document for Correcting
Common VOC & Other Rule
Deficiencies,’’ EPA Region 9, August 21,
2001 (the Little Bluebook).
3. ‘‘State Implementation Plans;
General Preamble for the
Implementation of Title I of the Clean
Air Act Amendments of 1990,’’ 57 FR
13498 (April 16, 1992) (General
Preamble); 57 FR 18070 (April 28,
1992).
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Percentage of
estimated 2010
emission
reductions
33.1
19.1
17.4
5.6
5.4
19.4
82.5
5.1
0.0
0.2
7.7
4.5
4. ‘‘State Implementation Plans for
Serious PM–10 Nonattainment Areas,
and Attainment Date Waivers for PM–10
Nonattainment Areas Generally;
Addendum to the General Preamble for
the Implementation of Title I of the
Clean Air Act Amendments of 1990,’’ 59
FR 41998 (August 16, 1994)
(Addendum).
5. ‘‘PM–10 Guideline Document,’’ EPA
452/R–93–008, April 1993.
2. Measures Proposed for Approval
EPA has identified the State statutory
provisions submitted with the 189(d)
plan that implement the directives in
each measure for which we are
proposing action. Many of the 189(d)
plan measures refer to Arizona Senate
Bill 1552 (SB 1552). In 2007, the
Arizona Legislature passed SB 1552,
which includes several air quality
provisions designed to reduce PM–10.
SB 1552 adds new and amends existing
provisions of the Arizona Revised
Statutes (ARS) and is included in the
189(d) plan submittal. 189(d) plan,
chapter 10, ‘‘Commitments for
Implementation,’’ volume two. We are
proposing to approve the sections of the
ARS that implement the plan measures
identified in table 4 below. For ease of
discussion, the statutory provisions that
we are proposing to approve are
associated with measures that can be
generally grouped into seven categories:
on-site dust management, certification
programs, vehicle use, leaf blowers,
unpaved areas, burning and agriculture.
A brief discussion of each category is
provided after the table.
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TABLE 4—189(d) PLAN MEASURE CATEGORIES AND ASSOCIATED STATUTORY PROVISIONS
Category
Measure numbers from 189(d)
plan
Associated statutory provisions
On-site management .....................................................
Certification programs ...................................................
2, 3, 16 ......................................
5*, 24* .......................................
Vehicle Use ...................................................................
19*, 23, 31, 46 ..........................
Leaf blowers ..................................................................
Unpaved areas ..............................................................
Burning ..........................................................................
Agriculture ......................................................................
18, 21, 22, 45 ............................
25, 26*, 28, 33 ..........................
35, 47 ........................................
50* .............................................
ARS 49–474.05.
ARS 9–500.04, ARS 49–457.02,
ARS 49–474.01.
ARS 9–500.04, ARS 9–500.27, ARS 49–457.03,
ARS 49–457.04, ARS 49–474.01.
ARS 9–500.04, ARS 11–877, ARS 49–457.01.
ARS 9–500.04, ARS 28–6705, ARS 49–474.01.
ARS 49–501.
ARS 49–457.12
* The State submitted these measures as contingency measures pursuant to CAA section 172(c)(9). See section III.F below for further
discussion.
With the exception of ARS 49–457,
discussed in section III.B.3 below, and
ARS 49–474.01, the ARS sections listed
above are not currently in the Arizona
SIP. On August 10, 1988, we approved
an earlier version of ARS 49–474.01 that
was submitted by the State to EPA on
May 22, 1987. 53 FR 30224. In
comparison to this previously approved
version, the newly submitted version of
ARS 49–474.01 contains several
additional requirements regarding
unstabilized areas and vehicle use that
make the statutory provision more
stringent. Therefore, we believe the
current submitted version of ARS 49–
474.01 represents a strengthening of the
SIP and is consistent with the relevant
policy and guidance regarding SIP
relaxations.
On-Site Management
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Many of the 189(d) plan measures are
related to the reduction of PM–10
emissions through dust control training
and on-site management by trained
personnel. Measures #2 and #3 address
development of basic and
comprehensive training programs for
the suppression of emissions. The
program requires completion of dust
control training for water truck and
water pull drivers, and on-site
representatives of sites with more than
one acre of disturbed surface area
subject to a permit requiring control of
PM–10 emissions. Any site with five or
more acres of disturbed surface area
subject to a permit requiring control of
PM–10 emissions will be required to
12 Measure #50 concerns the State statutory and
regulatory program for the control of PM–10 from
agricultural sources in the Maricopa area. The
program is codified in ARS 49–457 and Arizona
Administrative Code (AsAC) R18–2–610 and R18–
2–611. ARS 49–457 established the program and
authorized a committee to adopt implementing
regulations. While we are proposing to fully
approve the amendment to ARS–457 which was
submitted with the 189(d) plan, we do not describe
it further in this section because we address the
agricultural program in detail in section III.B.3
below.
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have a trained dust control coordinator
on site. Measure #16 involves the
requirement for subcontractors engaged
in dust generating operations to be
registered with the control officer. These
measures are implemented through ARS
49–474.05. See 189(d) plan, pp. 6–20, 6–
24, 6–42, and 6–46.
Certification Programs
Some of the 189(d) plan measures
seek to achieve emissions reductions
through certification of equipment or
personnel. In certain cases, the
certification program is intended to
provide an incentive for voluntary
emission reductions and good operating
practices. In other cases, the
certification program seeks to maintain
an appropriate level of emissions
control from regularly used equipment.
Measure #5 directs ADEQ to establish
the Dust-Free Developments Program.
The purpose of this program is to certify
persons and entities that demonstrate
exceptional commitment to the
reduction of airborne dust. See ARS 49–
457.02 and 189(d) plan, p. 6–29.
Measure #24 directs cities and towns to
require that new or renewed contracts
for sweeping of city streets must be
conducted with certified street
sweepers. Street sweepers must meet
the certification specifications
contained in South Coast Air Quality
Management District (SCAQMD) Rule
1186. See ARS 9–500.04, ARS 49–
474.01, and 189(d) plan, p. 6–72.
Vehicle Use
Because vehicle use often generates
PM–10 emissions, the 189(d) plan
addresses several different activities
related to vehicle use. Measures #19,
#23, and #46 restrict off-road vehicle
use in certain areas and on high
pollution advisory days, and prescribe
outreach to off-road vehicle purchasers
to inform them of methods for reducing
generation of dust. See ARS 9–500.27,
ARS 49–457.03, ARS 49–457.04, and
189(d) plan, pp. 6–53, 6–71 and 6–190.
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Measure #31 restricts vehicle use and
parking on unpaved or unstabilized
vacant lots. See ARS 9–500.04, ARS 49–
474.01 and 189(d) plan, p. 6–141.
Leaf Blowers
The 189(d) plan seeks to reduce PM–
10 emissions from the operation of leaf
blowers. Measures #18 and #45 restrict
the use of leaf blowers on high pollution
advisory days or on unstabilized
surfaces. Measure #21 involves the
banning of leaf blowers from blowing
landscape debris into public roadways.
Measure #22 requires outreach to buyers
and sellers of leaf blowing equipment to
inform them of safe and efficient use,
methods for reducing generation of dust,
and dust control ordinances and
restrictions. See ARS 9–500.04, ARS 11–
877, ARS 49–457.01 and 189(d) plan,
pp. 6–50, 6–69, 6–70 and 6–189.
Unpaved Areas
The 189(d) plan contains several
measures that seek to reduce PM–10
emissions by reducing the number of
unpaved or unstabilized areas. Measures
#25, #26, and #28 direct cities and
towns to pave or stabilize parking lots,
dirt roads, alleys, and shoulders.
Measure #33 allows counties the ability
to assess fines to recover the cost of
stabilizing lots. See ARS 9–500.04, ARS
49–474.01, ARS 28–6705 and 189(d)
plan, pp. 6–86, 6–103, 6–124, and
6–169.
Burning
Several measures are designed to
regulate burning activities. Measure #35
bans the use of outdoor fireplaces in the
hospitality industry on ‘‘no burn’’ days.
Measure #47 bans open burning during
the ozone season. See ARS 49–501 and
189(d) plan, pp. 6–174 and 6–190.
3. Measure Proposed for Limited
Approval/Disapproval
Measure #50 is included in the 189(d)
plan as a contingency measure and is
designed to achieve emission reductions
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from agricultural sources of PM–10.
189(d) plan, pp. 6–191 and 8–73.
Measure #50 is implemented through
SB 1552 which amended ARS 49–457
and requires in section 20 that the best
management practices (BMP) committee
for regulated agricultural activities
adopt revised rules. These rules, AAC
R18–2–610 and R18–2–611, were
revised pursuant to amended ARS 49–
457 and submitted with the 189(d) plan.
189(d) plan, chapter 10, ‘‘Commitments
for Implementation,’’ volume two. See
also 189(d) plan, Measure #41, p. 6–185.
On May 6, 2010, Arizona again
submitted the revised versions of AAC
R18–2–610 and R18–2–611 with
additional documentation and the
‘‘Agricultural Best Management
Practices Guidance Booklet and Pocket
Guide’’ (Handbook). Letter from
Benjamin Grumbles, ADEQ, to Jared
Blumenfeld, EPA, with enclosures, May
6, 2010. The Handbook provides
regulated sources with guidance on how
to implement BMPs and provides
information to the public and farm
organizations about AAC R18–2–610
and R18–2–611 (Handbook, p. 5).
We describe the history of agricultural
PM–10 controls in the Maricopa area
and we evaluate amended ARS 49–457
and revised AAC R18–2–610 and R18–
2–611 below.
a. History
The analysis done for the ‘‘Plan for
Attainment of the 24-hour PM–10
Standard—Maricopa County PM–10
Nonattainment Area,’’ May 1997—
(Microscale Plan)—revealed the
contribution agricultural sources make
to exceedances of the 24-hour PM–10
standard in the Maricopa area. See
Microscale plan, pp. 18–19. In order to
develop adequate controls for this
source category, Arizona passed
legislation, the original version of ARS
49–457, in 1997 establishing the
agricultural BMP committee and
directing the committee to adopt by rule
by June 10, 2000, an agricultural general
permit specifying best management
practices for reducing PM–10 from
agricultural activities. The legislation
also required that implementation of the
agricultural controls begin by June 10,
2000, with an education program and
full compliance with the rule to be
achieved by December 31, 2001.
In September 1998, the State
submitted ARS 49–457 and on June 29,
1999 we approved the statute as meeting
the reasonably available control
measure (RACM) requirements of the
CAA.13 64 FR 34726.
13 Prior to its classification as serious, the
Maricopa area, as a moderate PM–10 nonattainment
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After a series of meetings during 1999
and 2000, the agricultural BMP
committee in 2000 adopted the original
versions of AAC R18–2–610,
‘‘Definitions for R18–2–611,’’ and AAC
R18–2–611, ‘‘Agricultural PM–10
General Permit; Maricopa PM10
Nonattainment Area’’ (collectively,
general permit rule). 66 FR 34598. The
BMPs are defined in AAC R18–2–610.
AAC R18–2–611 groups the BMPs into
three categories (tilling and harvest,
noncropland, and cropland). The
original version of AAC R18–2–611
required that commercial farmers select
one practice from each of these
categories. AAC R18–2–611 also
requires that commercial farmers
maintain records demonstrating
compliance with the general permit
rule.
In July 2000, the State submitted the
general permit rule. The State also
submitted an analysis quantifying the
emission reductions expected from the
rule and the demonstration that the rule
meets the CAA’s RACM, BACM and
MSM requirements. We approved the
general permit rule as meeting the
RACM requirement in CAA section
189(a)(1)(C) on October 11, 2001. 66 FR
51869. We approved the general permit
rule as meeting the requirements for
BACM and MSM in CAA sections
189(b)(1)(B) and 188(e) on July 25, 2002.
67 FR 48718.
b. Amendments to ARS 49–457 and
Revisions to the General Permit Rule
SB 1552 amended ARS 49–457 to
increase the number of required BMPs
from one to two in the general permit
rule by December 31, 2007. SB 1552 also
expanded the scope of the applicability
of the general permit rule by amending
the definition of regulated area to
include any portion of Area A 14 that is
located in a county with a population of
two million or more persons.
The agricultural BMP committee
added definitions for the following
terms to AAC R18–2–610: ‘‘Area A,’’
‘‘cessation of night tilling,’’ ‘‘forage crop,’’
‘‘genetically modified,’’ ‘‘genetically
modified organism,’’ ‘‘global position
satellite system,’’ ‘‘green chop,’’ ‘‘high
pollution advisory,’’ ‘‘integrated pest
management,’’ ‘‘night tilling,’’ ‘‘organic
area, was required to implement RACM pursuant to
CAA section 189(a)(1)(C).
14 Area A is defined in ARS 49–541. The 189(d)
plan does not take any credit for emission
reductions from the general permit rule’s expansion
to Area A because it extends beyond the boundaries
of the Maricopa area. 189(d) plan, p. 8–73. ARS 49–
451 was not submitted for inclusion into the SIP.
While not a basis for our proposed action here, we
recommend that ADEQ either insert the definition
from ARS 49–451 into the general permit rule or
submit ARS 49–451 to EPA.
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farming practices,’’ ‘‘precision farming,’’
and ‘‘transgenic crops.’’ The definitions
for ‘‘commercial farm’’ and ‘‘regulated
agricultural activity’’ were amended to
include Area A.
The agricultural BMP committee also
amended AAC R18–2–611. Section C of
AAC R18–2–611 was amended to
require commercial farmers to
implement two BMPs each from the
categories of tillage and harvest,
noncropland, and cropland. The
following additional BMPs were added
to the tillage and harvest category in
Section E of AAC R18–2–611: Green
chop, integrated pest management,
cessation of night tilling, precision
farming, and transgenic crops. The
cropland category in Section G was
augmented with the following
additional options: Integrated pest
management and precision farming.
c. Evaluation of Amendments to ARS
49–457 and Revisions to the General
Permit Rule
As stated above, in reviewing a
statute, regulation, or rule for SIP
approval, EPA looks to ensure that the
provision is enforceable as required by
CAA section 110(a), is consistent with
all applicable EPA guidance, and does
not relax existing SIP requirements as
required by CAA sections 110(l) and
193. ARS 49–457 and the general permit
rule generally meet the applicable
requirements and guidance. We are
proposing to approve amended ARS 49–
457 because it strengthens the SIP by
requiring an increase in the number of
required BMPs and expanding the
geographical scope of the agricultural
BMP program. With regard to the
general permit rule, we are proposing a
limited approval and limited
disapproval and we discuss the bases
for that proposal below.
As stated above, we approved the
general permit rule as meeting the CAA
requirements for BACM in 2002. Since
then, several air pollution control
agencies in California, including the San
Joaquin Valley Unified Air Pollution
Control District (SJVAPCD) and the
Imperial County Air Pollution Control
District (ICAPCD), have adopted
analogous rules for controlling PM–10
emissions from agricultural sources. The
relevant State and local rules in
Arizona, California and Nevada are
summarized in our recent action on
ICAPCD’s Rule 806. 75 FR 39366, 39383
(July 8, 2010).
Since the adoption of controls for
agricultural sources in the Maricopa
area, other State and local agencies
which have adopted such controls, as
well as EPA, have acquired additional
expertise about how to control
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emissions from these sources and
implement regulations for them. As a
result, we no longer believe that the
requirements in the general permit rule
that we approved in 2002 for the
Maricopa area fully meet CAA
requirements.
AAC R18–2–611 Sections E, F and G
list BMPs intended to control emissions
from tillage and harvest, noncropland
and cropland, and the BMPs on these
lists are defined in AAC R18–2–610.
However, as discussed below, the
definitions in AAC R18–2–610 are
overly broad. Moreover, there is no
mechanism in the rule to provide
sufficient specificity to ensure a BACM
level of control.15
As an example of the breadth of the
BMPs, one of the BMPs in AAC R18–2–
611 Section E, the tillage and harvest
category, is ‘‘equipment modification.’’
This term is defined in AAC R18–2–610
Section 18 as ‘‘modifying agricultural
equipment to prevent or reduce
particulate matter generation from
cropland.’’ The types of equipment
modification are not specified in the
rule, and according to the Handbook,
examples of this practice include using
shields to redirect the fan exhaust of the
equipment or using spray bars that emit
a mist to knock down PM–10.
Handbook, p. 10. Because most of the
PM–10 generated during active
agricultural operations is due to
disturbance from parts of agricultural
equipment that come into direct contact
with the soil, we expect that using
appropriately designed spray bars
would be far more effective at reducing
PM–10 than redirecting a machine’s fan
exhaust. However, there is no provision
in the general permit rule that requires
a source or regulatory agency to evaluate
whether the more effective version of
this BMP is economically and
technologically feasible. Moreover,
while AAC R18–2–611 Section I
requires that a farmer record that he has
selected the ‘‘equipment modification’’
BMP, it does not require the farmer to
record what type of equipment
modification he will be implementing.
Hence, neither ADEQ nor the public can
verify whether what is being
implemented is a best available control
measure.
15 For example, SJVAPCD’s Rule 4550 has an
application submittal and approval process. Great
Basin Unified Air Pollution Control District’s
(GBUAPCD) Rule 502 has a similar application
submittal and approval process. SJVAPCD’s and
GBUAPCD’s application forms require sources to
select conservation management practices (CMPs),
the analogue to Arizona’s BMPs, and to describe the
specifics of the practices chosen. Such an
application submittal and approval process
provides a mechanism to ensure that controls are
implemented at a BACM level.
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An example from AAC R18–2–611
Section F, the category for noncropland,
is the ‘‘watering’’ BMP. AAC R18–2–610
Section 52 defines watering as ‘‘applying
water to noncropland.’’ The level of
control achieved would depend on the
amount of water that was applied, the
frequency with which it was applied, as
well as the size and conditions of the
area to which it was applied. However,
the rule does not specify the frequency
or amount of water application or
otherwise ensure that watering under
this measure is effective. Moreover, the
definition for ‘‘noncropland’’ in Section
31 of AAC R18–2–611 states that it
‘‘includes a private farm road, ditch,
ditch bank, equipment yard, storage
yard, or well head.’’ It is not clear which
of these areas a farmer would need to
control upon selecting the ‘‘watering’’
BMP. As written, the rule allows
regulated sources to implement the
‘‘watering’’ BMP in a manner that may
not be as effective as best available
controls. Furthermore, while AAC R18–
2–611 Section I requires that a farmer
record that he has selected the
‘‘watering’’ BMP, it does not require the
farmer to record how he will be
implementing this BMP. Hence, neither
ADEQ nor the public can verify whether
the BMP that is being implemented is in
fact a best available control measure.
An example from AAC R18–2–611
Section G, the category for cropland, is
the ‘‘artificial wind barrier’’ BMP. AAC
R18–2–610 Section 4 defines ‘‘artificial
wind barrier’’ as ‘‘a physical barrier to
the wind.’’ The control effectiveness of
the barrier will depend on what the
barrier is constructed of, the size of the
barrier, as well as the placement of the
barrier. In fact, the Handbook suggests
that certain materials (e.g., board fences,
burlap fences, crate walls, and bales of
hay) be used, notes that the distance of
10 times the barrier height is considered
the protected area downwind of a
barrier, and states that the barrier
should be aligned across the prevailing
wind direction. Handbook, p. 20.
However, the general permit rule does
not specify any parameters that need to
be met for the implementation of the
‘‘artificial wind barrier’’ BMP. Hence a
source can construct a barrier that is not
a best available control and still be in
compliance with the general permit
rule.
The absence of sufficiently defined
requirements makes it difficult for
regulated parties to understand and
ensure compliance with the
requirements, and makes it difficult for
ADEQ or others to verify compliance
with the general permit rule. The
general permit rule needs to be revised
to ensure that the BMPs are enforceable
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as required by CAA section 110(a) and
are implemented at a BACM level as
required by section 189(b)(1)(B).
4. Summary of Proposed Action on
Measures in 189(d) Plan
EPA believes the statutory provisions
associated with the 189(d) plan
measures in table 4 in section III.B.2
above are consistent with the relevant
policy and guidance regarding
enforceability and SIP relaxations.
Therefore, we are proposing to fully
approve under CAA section 110(k)(3)
the following Arizona statutory
provisions, as submitted with the 189(d)
plan:
ARS 9–500.04
ARS 9–500.27
ARS 11–877
ARS 28–6705
ARS 49–457
ARS 49–457.01
ARS 49–457.02
ARS 49–457.03
ARS 49–457.04
ARS 49–474.01
ARS 49–474.05
ARS 49–501
EPA is also proposing pursuant to
CAA section 110(k)(3) to approve the
‘‘Agricultural Best Management
Practices Guidance Booklet and Pocket
Guide’’ as submitted on May 6, 2010.
EPA is also proposing pursuant to
CAA section 110(k)(3) a limited
approval and limited disapproval of
AAC R18–2–610 and AAC R18–2–611,
as submitted in the 189(d) plan. We are
proposing a limited approval because
AAC R18–2–610 and AAC R18–2–611
strengthen the SIP. We are proposing a
limited disapproval because the general
permit rule does not meet the
enforceability requirements of CAA
section 110(a) and no longer ensures
that controls for agricultural sources in
the Maricopa area are implemented at a
BACM level as required by section
189(b)(1)(B).
C. Attainment Demonstration
CAA section 189(d) requires the
submittal of plan revisions that provide
for expeditious attainment of the PM–10
NAAQS. The attainment deadline
applicable to an area that misses the
serious area attainment date is as soon
as practicable, but no later than five
years from the publication date of the
notice of a nonattainment finding unless
extended by EPA as meeting certain
specified requirements. CAA section
179(d)(3). Because, as stated previously,
EPA published the nonattainment
finding for the Maricopa area on June 6,
2007 (72 FR 31183), the attainment
deadline for the area is as expeditiously
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as practicable but no later than June 6,
2012.
The 189(d) plan projects through a
modeled attainment demonstration that
the Maricopa area will attain the PM–10
standard by December 31, 2010. 189(d)
plan, chapter 8. According to the plan,
modeling was conducted for the two
areas, the Salt River area and the Higley
monitor, that have the mix and density
of sources that caused the highest 24hour PM–10 monitor readings in the
Maricopa area from 2004 through 2006.
The Salt River area includes the three
monitors (West 43rd Avenue, Durango
Complex and Bethune Elementary) that
recorded violations during those years.
The Higley monitor did not violate the
PM–10 standard for that period but had
one exceedance in 2004 and one in 2006
and the surrounding area has a different
mix of sources than the Salt River area.
The plan also provides a modeled
attainment demonstration for the
remainder of the nonattainment area.
AERMOD was used for the attainment
demonstration for the Salt River area.
Attainment for the Higley monitor area
and the remainder of the nonattainment
area was shown using a proportional
rollback approach.
AERMOD is an EPA-approved model
and was appropriately used in the
189(d) plan. The proportional rollback
approach was also appropriate because
of the lack of good models for PM–10 on
large geographic scales. However, EPA
cannot approve an attainment
demonstration for PM–10
nonattainment areas based on modeled
projections of attainment if actual
ambient air quality monitoring data
show that the area cannot attain by the
projected date. Under 40 CFR 50.6(a),
the 24-hour PM–10 standard is attained
when the expected number of
exceedances per year at each monitoring
site is less than or equal to one. The
number of expected exceedances at a
site is determined by recording the
number of exceedances in each calendar
year and then averaging them over the
past 3 calendar years. 40 CFR part 50,
appendix K. Thus, in order for the
Maricopa area to attain the standard by
December 31, 2010, there can be no
more than one exceedance at any one
monitor in the nonattainment area in
calendar years 2008, 2009 and 2010.
There were 11 recorded exceedances
of the PM–10 standard in 2008 in the
Maricopa area. Five of these
exceedances were recorded at the West
43rd Avenue monitor, two at the
Durango Complex monitor, two at the
South Phoenix monitor, and two at the
Coyote Lakes monitor. In 2009, there
were 22 exceedances recorded in the
Maricopa Area. Seven of these
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exceedances were recorded at the West
43rd Avenue monitor, three at the
Durango Complex monitor, three at the
South Phoenix monitor, two at the
Higley monitor, two at the West
Chandler monitor, one at the West
Phoenix monitor, one at the Glendale
monitor, one at Greenwood monitor,
one at the Dysart monitor, and one at
the Bethune Elementary School
monitor.16
Of the eleven 2008 exceedances, ten
were flagged by the State as due to
exceptional events under EPA’s
Exceptional Events Rule (EER) 17 which
allows the Agency to exclude air quality
monitoring data from regulatory
determinations related to exceedances
or violations of the NAAQS if the
requirements of the EER are met. All of
the 2009 exceedances were flagged as
exceptional events under the EER.18
Under the EER, EPA may exclude
monitored exceedances of the NAAQS
from regulatory determinations if a state
adequately demonstrates that an
exceptional event caused the
exceedances. 40 CFR 50.14(a). Before
EPA will exclude data from these
regulatory determinations, the state
must flag the data in EPA’s Air Quality
System (AQS) database and, after notice
and an opportunity for public comment,
submit a demonstration to justify the
exclusion. After considering the weight
of evidence provided in the
demonstration, EPA will decide
whether or not to concur on each flag.
EPA has evaluated four of the 2008
exceedances recorded at the West 43rd
Avenue monitor in south-central
Phoenix that the State claims to be due
to exceptional events.19 The
exceedances were recorded on March
14, April 30, May 21, and June 4. On
May 21, 2010 EPA determined that the
events do not meet the requirements of
16 ‘‘USEPA Quick Look Report for Maricopa
County (01/01/2008–12/31/2010) Air Quality
System database, run date: August 26, 2010’’ (AQS
2008–2010 Quick Look Report). The Air Quality
System Identifier numbers for the monitors
referenced in this section are as follows: West 43rd
Avenue (04–013–4009), Durango Complex (04–013–
9812), South Phoenix (04–013–4003), Coyote Lakes
(04–013–4014), Higley (04–013–4006), West
Chandler (04–013–4004), West Phoenix (04–013–
0019), Glendale (04–013–2001), Greenwood (04–
013–3010), Dysart (04–013–4010), Bethune
Elementary School (04–013–8006).
17 See ‘‘Treatment of Data Influenced by
Exceptional Events,’’ 72 FR 13560 (March 22, 2007).
The EER is codified at 40 CFR 50.1 and 50.14. For
the state flagging requirements, see 40 CFR
50.14(c)(2).
18 AQS 2008–2010 Quick Look Report.
19 EPA has not evaluated the remaining
exceptional event claims for 2008 or those for 2009.
As discussed below, such an evaluation was not
necessary for us to determine that the Maricopa area
cannot attain the PM–10 standard by December 31,
2010.
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the EER and therefore do not qualify as
exceptional events for regulatory
purposes. Letter from Jared Blumenfeld,
EPA, to Benjamin H. Grumbles, ADEQ,
re: PM10 National Ambient Air Quality
Standard in Phoenix; Request for
Concurrence for Treatment as
‘‘Exceptional Events,’’ May 21, 2010,
with enclosures. As a result, EPA is not
excluding the exceedances recorded on
these dates from regulatory
determinations regarding NAAQS
exceedances in the Maricopa area.
Under 40 CFR part 50, appendix K,
because there have been four
exceedances in 2008 at the West 43rd
Avenue monitor, the area cannot attain
the standard by December 31, 2010 as
projected in the 189(d) plan. Therefore,
EPA is proposing to disapprove under
CAA section 110(k)(3) the attainment
demonstration in the plan as not
meeting the requirements of sections
189(d) and 179(d)(3).
Finally, we note here, as we address
in more detail in section III.A above,
that most of the emission reductions
relied on in the 189(d) plan are
projected to be achieved by increased
compliance with MCAQD Rules 310,
310.01 and 316. This is the case for the
attainment demonstration, as well as for
the 5% and RFP demonstrations
discussed in sections III.D and III.F
below. The 189(d) plan provides little or
no support for the emission reductions
attributed to these increased compliance
measures. See, e.g., Measure #8
(Conduct Nighttime and Weekend
Inspections) which, with no
explanation, estimates that compliance
with MCAQD Rules 310 and 316 will
increase by 4 percent in 2008, 6 percent
in 2009 and 8 percent in 2010. 189(d)
plan TSD, pp. III–4 through III–6. We
recognize that calculating accurate
emission reduction estimates for
increased compliance measures is
challenging. It is, however, important
for such estimates to have a technical
basis, especially when such measures
are expected to achieve the majority of
the emission reductions in a SIP. One
way to begin to address this issue would
be to initiate an ongoing process to
verify that compliance rates are
increasing as expected and that, as a
result, the projected emission
reductions are actually being realized.
D. 5% Requirement
The demonstration addressing the 5%
requirement of CAA section 189(d) is
presented in chapter 7 of the 189(d)
plan. Chapter 7 shows the annual 5%
emission reductions of PM–10 20 for
20 While the 5% requirement of section 189(d)
can be met by emission reductions of PM–10 or
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2008 through 2010, the projected
attainment year. The plan quantifies
emission reductions attributable to 25 of
the 53 measures in the plan to meet the
annual 5% targets. Table 7–2 in the
189(d) plan shows the base case PM–10
emissions from the 2005 Periodic
Inventory discussed in section III.A
above. Table 7–3 presents the controlled
emissions for 2007 through 2010, i.e.,
the emissions after the emission
reductions from the 25 quantified
measures have been applied. The plan
explains that the annual target is
obtained by multiplying the controlled
2007 emissions in table 7–3 by 5% and
concludes that the 5% targets are met in
2008, 2009 and 2010 with a surplus
margin of benefit in each year. 189(d)
plan, table 7–4, p. 7–19.
EPA believes the methodology for
determining the 5% targets for the years
2008, 2009 and 2010 is generally
appropriate. However, because we have
determined that the 2005 Periodic
Inventory on which the State based
these calculations is inaccurate, the
emission reduction targets themselves
are also necessarily inaccurate. Because
the 189(d) plan projects emission
reductions surplus to the 5% targets in
each year, it is theoretically possible
that creditable reductions from the 25
quantified measures would still achieve
the 5% reductions when recalculated
from an accurate base year inventory.
However that could only be determined
by an EPA review of a revised plan
based on adjusted calculations.
Furthermore, the language of section
189(d) compels us to conclude that the
5% demonstration in the 189(d) plan
does not meet that section’s
requirement. CAA section 189(d)
requires that the plan provide for annual
reductions of PM–10 or PM–10
precursors of not less than 5% each year
from the date of submission of the plan
until attainment. The 189(d) plan
submitted by Arizona does not provide
for reductions after 2010 because it
projects attainment of the PM–10
standard by the end of that year. As
discussed in section III.C above, the
Maricopa area cannot attain by
December 31, 2010.
For the above reasons, EPA is
proposing to disapprove under section
110(k)(3) the demonstration of the 5%
annual emission reductions in the
189(d) plan as not meeting the 5%
requirement in CAA section 189(d).
PM–10 precursors, the 189(d) plan relies on PM–
10 reductions. This reliance is consistent with the
nature of the particulate matter problem in the
Maricopa area. See footnote 5.
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E. Reasonable Further Progress and
Quantitative Milestones
Under section 189(c)(1), the 189(d)
plan must demonstrate RFP. We have
explained in guidance that for those
areas, such as the Maricopa area, where
‘‘the nonattainment problem is
attributed to area type sources (e.g.,
fugitive dust, residential wood
combustion, etc.), RFP should be met by
showing annual incremental emission
reductions sufficient generally to
maintain linear progress towards
attainment. Total PM–10 emissions
should not remain constant or increase
from 1 year to the next in such an area.’’
Further, we stated that ‘‘in reviewing the
SIP, EPA will determine whether the
annual incremental emission reductions
to be achieved are reasonable in light of
the statutory objective to ensure timely
attainment of the PM–10 NAAQS.’’
Addendum at 42015–42016.
PM–10 nonattainment SIPs are
required by section 189(c) to contain
quantitative milestones to be achieved
every three years and which are
consistent with RFP for the area. These
quantitative milestones should consist
of elements which allow progress to be
quantified or measured. Specifically,
states should identify and submit
quantitative milestones providing for
the amount of emission reductions
adequate to achieve the NAAQS by the
applicable attainment date. Id. at 42016.
The 189(d) plan provides a graph
showing a RFP line representing total
emissions in the Maricopa area after
emission reduction credit is applied for
the 25 measures described in chapter 6
of the plan which are quantified for the
purpose of meeting the section 189(c)
requirements. 189(d) plan, figure 8–25;
pp. 8–65 through 8–66. The graph
shows an annual downward linear trend
in emissions from 2007 through 2010,
the modeled attainment date in the
plan. The plan explains that the
appropriate milestone year is 2010. Id.
The statutory purpose of RFP is to
‘‘ensure attainment’’ and the quantitative
milestones are ‘‘to be achieved until the
area is redesignated to attainment’’
under CAA sections 171(1) and 189(c)
respectively. As discussed in section
III.C above, we are proposing to
disapprove the attainment
demonstration in the 189(d) plan
because, as a result of exceedances of
the PM–10 standard recorded at the
West 43rd Avenue monitor in 2008, the
area cannot attain the standard by 2010
as projected in the plan. As a result, the
RFP and milestone demonstrations in
the plan do not achieve the statutory
purposes of sections 171(1) and 189(c).
We are therefore proposing to
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disapprove these demonstrations under
CAA section 110(k)(3) as not meeting
the requirements of section 189(c).
F. Contingency Measures
CAA section 172(c)(9) requires that
the 189(d) plan provide for the
implementation of specific measures to
be undertaken if the area fails to make
RFP or to attain the PM–10 standard as
projected in the plan. That section
further requires that such measures are
to take effect in any such case without
further action by the state or EPA. The
CAA does not specify how many
contingency measures are necessary nor
does it specify the level of emission
reductions they must produce.
In guidance we have explained that
the purpose of contingency measures is
to ensure that additional emission
reductions beyond those relied on in the
attainment and RFP demonstrations are
available if there is a failure to make
RFP or to attain by the applicable
statutory date. Addendum at 42014–
42015. These additional emission
reductions will ensure continued
progress towards attainment while the
SIP is being revised to fully correct the
failure. To that end, we recommend that
contingency measures for PM–10
nonattainment areas provide emission
reductions equivalent to one year’s
average increment of RFP. Id.
In interpreting the requirement that
the contingency measures must ‘‘take
effect without further action by the State
or the Administrator,’’ the General
Preamble provides the following general
guidance: ‘‘[s]tates must show that their
contingency measures can be
implemented with minimal further
action on their part and with no
additional rulemaking actions such as
public hearings or legislative review.’’
General Preamble at 13512.21 Further,
‘‘[i]n general, EPA will expect all actions
needed to affect full implementation of
the measures to occur within 60 days
after EPA notifies the State of its
failure.’’ Id. The Addendum at 42015
reiterates this interpretation.
We have also interpreted section
172(c)(9) to allow states to implement
contingency measures before they are
triggered by a failure of RFP or
attainment as long as those measures are
intended to achieve reductions over and
beyond those relied on in the attainment
and RFP demonstrations. Id., and see
21 EPA elaborated on its interpretation of this
language in section 172(c)(9) in the General
Preamble in the context of the ozone standard: ‘‘The
EPA recognizes that certain actions, such as
notification of sources, modification of permits,
etc., would probably be needed before a measure
could be implemented effectively.’’ General
Preamble at 13512.
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LEAN v. EPA, 382 F.3d 575 (5th Cir.
2004).
The 189(d) plan addresses the section
172(c)(9) contingency measure
requirement in chapter 8, pp. 8–65
through 8–74. Of the 53 measures in the
plan, nine are designated and quantified
as contingency measures: Measures #1,
#5, #19, #24, #26, #27, #43, #50 and a
measure identified as ‘‘multiple’’ which
consists of Measures #14, #15 and #17.
Chapter 8 of the 189(d) plan includes a
discussion of each of these measures
along with associated emission
reductions for each of the years 2008,
2009 and 2010. Additional information
on the emission reductions claimed is in
the 189(d) plan TSD, chapter IV. The
measures are also individually
discussed in chapter 6 of the 189(d)
plan.
In calculating the target emission
reductions that the contingency
measures must meet, the 189(d) plan
cites EPA’s recommendation that they
provide reductions equivalent to one
year’s average increment of RFP. The
plan subtracts the total controlled
emissions in 2010 from the total
controlled emissions in 2007 and
divides this sum by three years to
produce an annual average of 4,869 tpy
as the target for the contingency
measures to meet in each of the years
2008, 2009 and 2010. 189(d) plan, p. 8–
67. Table 8–14 in the 189(d) plan lists
the projected emission reductions for
the nine contingency measures for each
of these years and shows emission
reductions in excess of the target for
each of them. Table 5 below shows the
contingency measures in the plan
identified by number and reproduces
the corresponding projected PM–10
reductions as depicted in table 8–14 in
the plan:
TABLE 5—SUMMARY OF PM–10 EMISSIONS REDUCTIONS FOR CONTINGENCY MEASURES
Contingency measures
PM–10 reductions
[tons/year]
No.
Measure title
1 ...............
5 ...............
19 .............
24 .............
26 .............
27 .............
43 .............
50 .............
Multiple .....
Public education and outreach program .................................................................................
Certification program for dust free developments ..................................................................
Reduce off-road vehicle use ...................................................................................................
Sweep streets with certified PM–10 certified street sweepers ...............................................
Pave or stabilize existing public dirt roads and alleys ...........................................................
Limit speeds to 15 mph on high traffic dirt roads ...................................................................
Additional $5M in FY07 MAG TIP for paving roads/shoulders ..............................................
Agricultural Best Management Practices ................................................................................
Reduce trackout onto paved roads ........................................................................................
2008
2010
47.6
28.9
140.3
1,027.7
1,488.0
390.4
205.2
637.6
1,256.9
47.5
21.5
174.6
1,563.1
2,313.3
390.2
820.9
608.0
1,273.4
48.5
17.6
179.1
2,129.2
3,723.6
390.2
820.9
579.7
1,270.0
5,222.5
7,212.6
9,158.9
4,869
Total for All Quantified Contingency Measures
2009
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Contingency Measure Reduction Target
As stated above, CAA section
172(c)(9) requires that the plan provide
for the implementation of contingency
measures to be undertaken if the area
fails to attain the PM–10 standard by the
applicable attainment date. The
Maricopa area cannot attain the PM–10
standard by the projected date in the
189(d) plan because of monitored
exceedances of the NAAQS in 2008.22
As a result, any emission reductions
from contingency measures in the
189(d) plan that are intended to take
effect upon an EPA finding that the area
failed to attain the standard cannot
currently be determined to be surplus to
the attainment demonstration as
required by section 172(c)(9). Therefore
we are proposing to disapprove the
attainment contingency measures under
CAA section 110(k)(3) as not meeting
the requirements of section 172(c)(9).
As also stated above, contingency
measures are required to be
implemented upon a failure of the
Maricopa area to meet RFP. The 189(d)
22 Note that because the modeled attainment
demonstration projected attainment by the end of
2010, the 189(d) plan does not address the outside
applicable statutory deadline under section
179(d)(3), June 6, 2012. See section III.B above.
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plan bases the emission reduction target
for these measures on reductions
between 2007 and 2010 calculated from
the 2005 Periodic Inventory that we
have determined to be inaccurate. See
section III.A above. Thus the emission
reduction target for the RFP contingency
measures is necessarily also inaccurate.
In addition to the inaccurate emission
reduction target for the RFP contingency
measures, many of the measures
themselves do not meet the
requirements of section 172(c)(9). These
deficiencies generally fall into three
categories: (1) Measures in the form of
commitments in resolutions adopted by
local or State governmental entities to
take legislative or other substantial
future action; (2) commitments in such
resolutions for which implementation is
conditioned on good faith efforts and
funding availability and are therefore
unenforceable; and (3) measures for
which no basis is provided for the
emission reductions claimed. While we
illustrate these individual deficiencies
below by reference to one or more of the
189(d) plan’s designated contingency
measures, it is important to note that
many of the measures are deficient for
multiple reasons.
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1. Some of the commitments by local
governments or State agencies to
implement measures that are intended
to achieve the required emission
reductions in 2008, 2009 and 2010 do
not meet the requirement of section
172(c)(9) that such measures are to take
effect without further regulatory or
legislative action.
For example, Measure #19 is intended
to reduce off-road vehicle use in areas
with high off-road vehicle activity. For
this measure, the 189(d) plan assigns
emission reduction credit to the
requirement in ARS 9–500.27.A, as
submitted in the 189(d) plan, that cities
and towns in the Maricopa area adopt,
implement and enforce ordinances no
later than March 31, 2008 prohibiting
the use of such vehicles on unpaved
surfaces closed by the landowner.
189(d) plan, p. 8–69; 189(d) plan TSD,
p. IV–3. The 189(d) plan includes a
number of resolutions adopted by cities
and towns committing to adopt such
ordinances to address the vehicle use
prohibition in the statute. However,
because the 189(d) plan was submitted
at the end of 2007, the contingency
measure, i.e., the vehicle use
prohibition, could not be fully
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implemented throughout the Maricopa
area without additional future
legislative action on the part of a
number of governmental entities.23
Furthermore, not only do some of the
contingency measure commitments fail
to meet the requirement of section
172(c)(9) that such measures are to be
implemented with minimal further
action, but because they depend on
future actions that may or may not
occur, it is also impossible to accurately
quantify emission reductions from them
at the time of plan development and
adoption. Thus it would not be possible
to determine at the time of plan
development and adoption whether in
the aggregate the measures designated as
contingency would meet or approximate
the target of one year’s average
increment of RFP. This is the case with
Measure #19, mentioned above. For that
measure, the 189(d) plan claims
emission reduction credit assuming that
all jurisdictions subject to the 2008
statutory requirement will comply.
189(d) plan TSD, p. IV–3. However,
there is no way to determine at the time
of the 189(d) plan adoption which, if
any, of the multiple jurisdictions would
in fact implement such requirements by
the statutory deadline.
Another example of this
quantification issue is Measure #26
regarding the paving or stabilization of
existing public dirt roads and alleys.
189(d) plan, pp. 6–103 and 8–72; 189(d)
plan TSD, p. IV–9. This measure
includes commitments in resolutions
adopted by 11 cities and towns to pave
roads from 2007 through 2010 and
claims emission reduction credit
assuming full compliance. See also
Measure #5 which quantifies as a
contingency measure a requirement in
ARS 49–457.02 that ADEQ establish a
dust-free development program by
September 19, 2007.24 189(d) plan TSD,
p. 8–69. However, a 2010 report
prepared by MAG addressing the 2008
implementation status of the 53
measures in the 189(d) plan states that
‘‘[t]his measure was not implemented
because ADEQ delayed the certification
program indefinitely due to budgetary
23 In some cases, e.g., the City of Goodyear,
ordinances implementing the commitments in
resolutions were also submitted with the 189(d)
plan. In others, however, e.g., the City of Apache
Junction and the Town of Buckeye, the submitted
resolutions include a schedule for the future
adoption and implementation of ordinances. ADEQ
forwarded these ordinances to EPA in 2008 as
supplemental information, but not as SIP
submittals. See footnote 1. This distinction is
significant because here the ordinances are the
ultimate regulatory vehicle.
24 While the 189(d) plan refers to a deadline in
ARS 49–457.02 for the establishment of this
program, that statutory provision, as submitted with
the 189(d) plan, does not contain a deadline.
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constraints.’’ Letter from Lindy Bauer,
MAG to Jared Blumenfeld, EPA, March
9, 2010, enclosing ‘‘2008
Implementation Status of Committed
Measures in the MAG 2007 Five Percent
Plan for PM–10 for the Maricopa County
Nonattainment Areas,’’ February 2010,
MAG (2008 Status Report), table 1, p. 4.
See also Measure #24 which includes,
among others, a commitment by the
Arizona Department of Transportation
(ADOT) to require in the contract
awarded in January 2008 that
contractors use PM–10 certified street
sweepers on all State highways in the
Maricopa area. 189(d) plan, p. 8–70;
189(d) plan TSD, p. IV–5; ADOT
‘‘Resolution to Implement Measures in
the MAG 2007 Five Percent Plan for
PM–10 for the Maricopa County
Nonattainment Area.’’ 189(d) plan,
chapter 10, ‘‘Commitments for
Implementation,’’ volume two. The
2008, 2009 and 2010 emission
reductions claimed for Measure #24
assume implementation of the ADOT
component of the measure. However,
the 2008 Status Report states that
‘‘ADOT’s current contract * * * does
not require the use of PM–10 certified
street sweepers * * *.’’ 2008 Status
Report, p. 15.
2. In addition to the above issue
regarding commitments to take future
action, a number of the commitments
quantified for credit in the 189(d) plan
as contingency measures are in the form
of city, town and county resolutions that
specifically recognize that the funding
or schedules for such actions may be
modified depending on the availability
of funding or other contingencies. These
commitments are also qualified by the
statement that the agency making the
commitment ‘‘agrees to proceed with a
good faith effort to implement the
identified measures.’’ 25 See, e.g.,
Measure #1 regarding public education
and outreach, 189(d) plan, pp. 6–2
through 6–20 and related resolutions in
chapter 10, ‘‘Commitments for
Implementation,’’ volumes one and two.
See also id., p. 8–67. See also Measure
#26 regarding the paving or stabilization
of existing public dirt roads and alleys,
id., pp. 6–103 and 8–72; 189(d) plan
TSD, p. IV–7.
The language in the above
commitments regarding good faith
efforts and funding availability makes
the measures that are intended to
achieve the required emission
reductions virtually impossible to
enforce. Section 110(a)(2) of the Act
25 While EPA has approved the commitments
with this language into the Arizona SIP in past plan
actions as strengthening the SIP, we did not
approve specific emission reduction credits for
them.
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requires that SIPs include ‘‘enforceable
emission limitations and other control
measures’’ and ‘‘a program to provide for
the enforcement of the measures’’ in the
plan. As we have explained, ‘‘[m]easures
are enforceable when they are duly
adopted, and specify clear,
unambiguous, and measurable
requirements. Court decisions made
clear that regulations must be
enforceable in practice. A regulatory
limit is not enforceable if, for example,
it is impractical to determine
compliance with the published limit.’’
General Preamble at 13568. In the case
of most of the contingency measure
commitments in the 189(d) plan, the
implementation of the underlying
measure cannot be ensured because the
entity making the commitment can
avoid having to implement it by
asserting that it made good faith efforts,
but failed to do so and/or that
implementation did not occur due to
insufficient funds.
3. The 189(d) plan provides no
methodology or support for the PM–10
emission reductions credited to a
number of the contingency measures.
For example, the group of Measures #14,
#15 and #17 designated in the plan as
‘‘multiple’’ is intended to reduce
trackout onto paved roads. 189(d) plan,
p. 8–74. The 189(d) plan TSD, p. IV–13,
states that ‘‘[t]he reduction in trackout
emissions in the PM–10 nonattainment
area due to the impact of these three
committed measures is expected to be at
least 15 percent in 2008–2010’’ and
credits these measures with the
following emission reductions: 1256.9
tpy in 2008, 1273.4 tpy in 2009 and
1270 tpy in 2010. No information is
provided in the 189(d) plan regarding
how the 15 percent was determined.
Furthermore, the reductions from each
measure are not disaggregated so it is
impossible to determine the source of
the claimed emission reductions or how
they were calculated for each measure.
Similarly, for Measure #1, the plan
identifies annual emission reductions
from seven source categories resulting
from public education and outreach in
various local jurisdictions but does not
explain how these reductions were
calculated. 189(d) plan TSD, p. IV–1.
See also Measure #5 which provides
annual emission reduction credits
without any supporting information.
The 189(d) plan TSD merely states:
‘‘[d]ue to the implementation of this
program [certification program for dustfree developments to serve as an
industry standard], the construction
emissions are expected to decline by
0.10% in 2008–2010.’’ 189(d) plan TSD,
p. IV–2.
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For the reasons discussed above we
are proposing to disapprove under CAA
section 110(k)(3) the contingency
measures in the 189(d) plan as not
meeting the requirements of section
172(c)(9).
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G. Transportation Conformity and
Motor Vehicle Emissions Budgets
Transportation conformity is required
by CAA section 176(c). Our conformity
rule (40 CFR part 93, subpart A) requires
that transportation plans, programs, and
projects conform to state air quality
implementation plans and establishes
the criteria and procedures for
determining whether or not they do so.
Conformity to a SIP means that
transportation activities will not
produce new air quality violations,
worsen existing violations, or delay
timely attainment of the NAAQS or the
timely achievement of interim
milestones.
The 189(d) plan specifies the
maximum transportation-related PM–10
emissions allowed in the proposed
attainment year, 2010, i.e., the MVEB.
189(d) plan, p. 8–75. This budget
includes emissions from road
construction, vehicle exhaust, tire and
brake wear, dust generated from
unpaved roads and re-entrained dust
from vehicles traveling on paved roads.
This budget is based on the 2010
emissions inventory that was projected
from the 2005 Periodic Inventory and
reflects emission reductions that the
plan expects will result from the control
measures. The budget is consistent with
the attainment, 5% and RFP
demonstrations in the 189(d) plan.
However, as explained elsewhere in this
proposed rule, the area cannot attain by
the end of 2010 as projected in the plan
and we are, in addition to the
attainment demonstration, proposing to
disapprove the plan’s emissions
inventories, 5% and RFP
demonstrations. Therefore we must also
propose to disapprove the MVEB.
In order for us to find the emission
level or ‘‘budget’’ in the 189(d) plan
adequate and subsequently approvable,
the plan must meet the conformity
adequacy provisions of 40 CFR
93.118(e)(4) and (5). For more
information on the transportation
conformity requirement and applicable
policies on MVEBs, please visit our
transportation conformity Web site at:
https://www.epa.gov/otaq/
stateresources/transconf/index.htm. The
189(d) plan includes the PM–10 MVEB
shown in table 6 below.
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The consequences of plan disapproval
on transportation conformity are
explained in 40 CFR 93.120. First, if a
(Annual-average emissions in metric tons per
plan is disapproved by EPA, a
day (mtpd))
conformity ‘‘freeze’’ takes effect once the
action becomes effective (usually 30
Year
MVEB
days after publication of the final action
2010 ................................................
103.3 in the Federal Register). A conformity
freeze means that only projects in the
On March 13, 2008, we announced
first four years of the most recent
receipt of the 189(d) plan on the Internet conforming Regional Transportation
and requested public comment on the
Plan (RTP) and Transportation
adequacy of the motor vehicle emissions Improvement Program (TIP) can
budget by April 14, 2008. We did not
proceed. See 40 CFR 93.120(a). During
receive any comments during the
a freeze, no new RTPs, TIPs or RTP/TIP
comment period. During that time we
amendments can be found to conform.
reviewed the MVEB and preliminarily
The conformity status of these plans
determined that it met the adequacy
would then lapse on the date that
criteria in 40 CFR 93.118(e)(4) and (5).
highway sanctions as a result of the
We sent a letter to ADEQ and MAG on
disapproval are imposed on the
May 30, 2008 stating that the 2010
nonattainment area under section
motor vehicle PM–10 emissions budget
179(b)(1) of the CAA. See 40 CFR
for the Maricopa area in the submitted
93.120(a)(1). Generally, highway
189(d) plan was adequate. Our finding
sanctions are triggered 24 months after
was published in the Federal Register
the effective date of the disapproval of
on June 16, 2008 (73 FR 34013),
a required SIP revision for a
effective on July 1, 2008.
nonattainment area. During a
As explained in the June 16, 2008
conformity lapse, no new transportation
Federal Register notice, an adequacy
plans, programs, or projects may be
review is separate from EPA’s
found to conform until another SIP
completeness and full plan review, and
revision fulfilling the same CAA
should not be used to prejudge EPA’s
requirements is submitted and
ultimate approval action for the SIP.
conformity of this submission is
Even if we find a budget adequate, the
determined.
SIP and the associated budget can later
If EPA were proposing to disapprove
be disapproved for reasons beyond
the plan for administrative reasons
those in 40 CFR 93.118(e).
unrelated to the attainment, 5% and
Because we are proposing to
RFP demonstrations, EPA could issue
disapprove the emission inventories,
the disapproval with a protective
and the attainment 5% and RFP
finding. See 40 CFR 93.120(a)(3). This
demonstrations, we are also now
would avoid the conformity freeze.
proposing to disapprove the 189(d)
Because this is not the case, EPA does
plan’s 2010 PM–10 MVEB. Under 40
not believe that a protective finding
CFR 93.118(e)(4)(iv), we review a
should be proposed in connection with
submitted plan to determine whether
our proposed disapproval action on the
the MVEB, when considered together
189(d) plan. Therefore, a conformity
with all other emissions sources, are
freeze will be in place upon the effective
consistent with applicable requirements date of any final disapproval of the
for RFP, attainment, or maintenance
189(d) plan.
(whichever is relevant to a given SIP
H. Adequate Legal Authority and
submission). Because we have now
concluded that the area cannot attain by Resources
2010 as projected in the 189(d) plan, the
Section 110(a)(2)(E)(i) of the Clean Air
MVEB cannot be consistent with the
Act requires that implementation plans
attainment requirement. In addition,
provide necessary assurances that the
because we are proposing to disapprove state (or the general purpose local
the 5% and RFP demonstrations, the
government) will have adequate
MVEB is not consistent with the
personnel, funding and authority under
applicable requirements to show 5%
state law. Requirements for legal
annual reductions and RFP. Given the
authority are further defined in 40 CFR
overemphasis in the plan on reducing
part 51, subpart L (section 51.230–232)
emissions from construction activities,
and for resources in 40 CFR 51.280.
it is quite possible that more reductions
States and responsible local agencies
in onroad emissions will be required to
must demonstrate that they have the
meet the applicable requirements.
legal authority to adopt and enforce
Consequently, we find that the plan and provisions of the SIP and to obtain
related budget do not meet the
information necessary to determine
requirements for adequacy and
compliance. SIPs must also describe the
approval.
resources that are available or will be
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available to the state and local agencies
to carry out the plan, both at the time
of submittal and during the 5-year
period following submittal. These
requirements are addressed in chapter
10 of the 189(d) plan. We evaluate these
requirements for the plan in general and
for those measures for which we are
proposing approval or limited approval.
MAG derives its authority to develop
and adopt the 189(d) plan and other
nonattainment area plans from ARS 49–
406 and from a February 7, 1978 letter
from the Governor of Arizona 26
designating MAG as responsible for
those tasks. ADEQ is authorized to
adopt and submit the 189(d) plan by
ARS 49–404 and ARS 49–406.
We are proposing for full approval
statutes that have been adopted by the
Arizona legislature, signed by the
Governor and incorporated into the
Arizona Revised Statutes. We are also
proposing a limited approval of
regulations authorized and mandated by
Arizona statute. See section III.B above.
Because the requirements in these
statutes and regulations are directly
imposed by State law, no further
demonstration of legal authority to
adopt emission standards and
limitations is needed under CAA
section 110(a)(2)(E)(i) and 40 CFR part
51, subpart L.
Section 51.230 of 40 CFR also requires
that the State have the authority to
‘‘[e]nforce applicable laws, regulations,
and standards, and seek injunctive
relief.’’ ARS 49–462, 49–463 and 49–464
provide the general authorities adequate
to meet these requirements. We note
that EPA, in undertaking enforcement
actions under CAA section 113, is not
constrained by provisions it approves
into SIPs that circumscribe the
enforcement authorities available to
state and local governments.
Several of the State statutory
provisions proposed for full approval
and the regulations proposed for limited
approval are direct mandates to the
regulated community and require ADEQ
to implement and enforce programs in
whole or in part. See, e.g., ARS 49–457,
49–457.01, 49–457.03 and 49–457.04.
There is no description in the 189(d)
plan of the resources available to the
State to implement and enforce these
statutory and regulatory provisions.
Thus it is not possible for EPA to
ascertain whether the State has adequate
personnel and funding under CAA
section 110(a)(2)(E)(i) and EPA’s related
26 Letter from Wesley Bolin, Governor of Arizona,
to Douglas M. Costle, Administrator of EPA,
February 7, 1978, found in the 189(d) plan, chapter
10, ’’Commitments for Implementation,’’ Volume
one, ‘‘Maricopa Association of Governments.’’
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regulations to carry out these State
statutes.
Many of the Arizona statutory
provisions proposed for approval are
directives to local governmental entities
to take action. For example, ARS 49–
474.05 requires specified local
jurisdictions to develop extensive dust
control programs. Developing such
programs will require resources and
legal authority at the local level.
However, we are not proposing approval
of such programs at this time. This
action is merely proposing approval of
the statutory mandate to develop the
program. Therefore, for these statutory
provisions, a demonstration that
adequate authority and resources are
available is not required.
Section 110(a)(2)(E)(iii) requires SIPs
to include necessary assurances that
where a state has relied on a local or
regional government, agency or
instrumentality for the implementation
of any plan provision, the State has
responsibility for ensuring adequate
implementation of such plan provision.
We have previously found that Arizona
law provides such assurances. 60 FR
18010, 18019 (April 10, 1995).
For the reasons discussed above, we
propose to find that the requirements of
section 110(a)(2)(E) and related
regulations have been met with respect
to legal authority. However, we propose
to find that the 189(d) plan does not
demonstrate that ADEQ has adequate
personnel and funding to implement the
State statutes and regulations proposed
for full or limited approval for which
the State has implementation and
enforcement responsibility and
authority.
IV. Summary of Proposed Actions
EPA is proposing to approve in part
and disapprove in part, the 189(d) plan
for the Maricopa County (Phoenix) PM–
10 nonattainment area as follows:
A. EPA is proposing to disapprove
pursuant to CAA section 110(k)(3) the
following elements of the ‘‘MAG 2007
Five Percent Plan for PM–10 for the
Maricopa County Nonattainment Area’’:
(1) The 2005 baseline emissions
inventory and the projected emission
inventories as not meeting the
requirements of CAA sections 172(c)(3);
(2) The attainment demonstration as
not meeting the requirements of CAA
sections 189(d) and 179(d)(3);
(3) The 5% demonstration as not
meeting the requirements of CAA
sections 189(d);
(4) The reasonable further progress
and milestone demonstrations as not
meeting the requirements of CAA
section 189(c);
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54819
(5) The contingency measures as not
meeting the requirements of CAA
sections 172(c)(9); and
(6) The 2010 MVEB as not meeting the
requirements of CAA section 176(c) and
40 CFR 93.118(e)(4).
B. EPA is proposing a limited
approval and disapproval of AAC R18–
2–610 and AAC R18–2–611 as
submitted in the ‘‘MAG 2007 Five
Percent Plan for PM–10 for the
Maricopa County Nonattainment Area’’
pursuant to CAA section 110(k)(3). EPA
is proposing a limited approval because
these regulations strengthen the SIP and
a limited disapproval because they do
not fully meet the requirements of CAA
sections 110(a) and 189(b)(1)(B) for
enforceable BACM for agricultural
sources of PM–10 in the Maricopa area.
C. EPA is proposing to approve
pursuant to CAA section 110(k)(3) the
following sections of the Arizona
Revised Statutes as submitted in the
‘‘MAG 2007 Five Percent Plan for PM–
10 for the Maricopa County
Nonattainment Area’’ as strengthening
the SIP: ARS 9–500.04, ARS 9–500.27,
ARS 11–877, ARS 28–6705, ARS 49–
457, ARS 49–457.01, ARS 49–457.02,
ARS 49–457.03, ARS 49–457.04, ARS
49–474.01, ARS 49–474.05, and ARS
49–501.
D. EPA is proposing to approve
pursuant to CAA section 110(k)(3) the
‘‘Agricultural Best Management
Practices Guidance Booklet and Pocket
Guide’’ as submitted on May 6, 2010.
E. Effect of Finalizing the Proposed
Disapproval Actions
If we finalize disapprovals of the
emissions inventories, attainment
demonstration, RFP and milestone
demonstrations, 5% demonstration and
contingency measures, the offset
sanction in CAA section 179(b)(2) will
be applied in the Maricopa area 18
months after the effective date of any
final disapproval. The highway funding
sanctions in CAA section 179(b)(1) will
apply in the area 6 months after the
offset sanction is imposed. Neither
sanction will be imposed if Arizona
submits and we approve prior to the
implementation of the sanctions SIP
revisions meeting the relevant
requirements of the CAA. See 40 CFR
52.31 which sets forth in detail the
sanctions consequences of a final
disapproval.
If EPA takes final action on the 189(d)
plan as proposed, Arizona will need to
develop and submit a revised plan for
the Maricopa area that again addresses
applicable CAA requirements, including
section 189(d). While EPA is proposing
to approve many of the measures relied
on in the submitted 189(d) plan,
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additional emission reductions will be
needed. In pursuing such reductions,
we expect Arizona to investigate all
potential additional controls for source
categories in the Maricopa area that
contribute to PM–10 exceedances. This
investigation should include, but not be
limited to, analysis of BACM controls in
other geographic areas. We also note
that CAA section 179(d)(2) provides
EPA the authority to prescribe specific
additional controls for areas, such as the
Maricopa area, that have failed to attain
the NAAQS.
If we finalize a limited disapproval of
AAC R18–2–610 and 611, the offset
sanction in CAA section 179(b)(2) will
be applied in the Maricopa area 18
months after the effective date of the
final limited disapproval. The highway
funding sanctions in CAA section
179(b)(1) will apply in the area 6
months after the offset sanction is
imposed. Neither sanction will be
imposed if Arizona submits and we
approve prior to the implementation of
the sanctions a measure for the control
of agricultural sources meeting the
requirements of CAA sections 110(a)
and 189(b)(1)(B).
In addition to the sanctions, CAA
section 110(c)(1) provides that EPA
must promulgate a Federal
implementation plan addressing any
full or limited disapproved elements of
the plan, as set forth above, two years
after the effective date of a disapproval
should we not be able to approve
replacements submitted by the State.
Finally, if we take final action
disapproving the 189(d) plan, a
conformity freeze takes effect once the
action becomes effective (usually 30
days after publication of the final action
in the Federal Register). A conformity
freeze means that only projects in the
first four years of the most recent RTP
and TIP can proceed. During a freeze, no
new RTPs, TIPs or RTP/TIP
amendments can be found to conform.
V. Statutory and Executive Order
Reviews
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A. Executive Order 12866, Regulatory
Planning and Review
The Office of Management and Budget
(OMB) has exempted this regulatory
action from Executive Order 12866,
entitled ‘‘Regulatory Planning and
Review.’’
B. Paperwork Reduction Act
This action does not impose an
information collection burden under the
provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. Burden is
defined at 5 CFR 1320.3(b).
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C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
generally requires an agency to conduct
a regulatory flexibility analysis of any
rule subject to notice and comment
rulemaking requirements unless the
agency certifies that the rule will not
have a significant economic impact on
a substantial number of small entities.
Small entities include small businesses,
small not-for-profit enterprises, and
small governmental jurisdictions.
This rule will not have a significant
impact on a substantial number of small
entities because SIP approvals or
disapprovals under section 110 and
subchapter I, part D of the Clean Air Act
do not create any new requirements but
simply approve or disapprove
requirements that the State is already
imposing. Therefore, because the
proposed Federal SIP partial approval/
partial disapproval and limited
approval/limited disapproval actions do
not create any new requirements, I
certify that this action will not have a
significant economic impact on a
substantial number of small entities.
Moreover, due to the nature of the
Federal-State relationship under the
Clean Air Act, preparation of flexibility
analysis would constitute Federal
inquiry into the economic
reasonableness of state action. The
Clean Air Act forbids EPA to base its
actions concerning SIPs on such
grounds. Union Electric Co., v. U.S.
EPA, 427 U.S. 246, 255–66 (1976); 42
U.S.C. 7410(a)(2).
D. Unfunded Mandates Reform Act
Under sections 202 of the Unfunded
Mandates Reform Act of 1995
(‘‘Unfunded Mandates Act’’), signed into
law on March 22, 1995, EPA must
prepare a budgetary impact statement to
accompany any proposed or final rule
that includes a Federal mandate that
may result in estimated costs to State,
local, or tribal governments in the
aggregate; or to the private sector, of
$100 million or more. Under section
205, EPA must select the most costeffective and least burdensome
alternative that achieves the objectives
of the rule and is consistent with
statutory requirements. Section 203
requires EPA to establish a plan for
informing and advising any small
governments that may be significantly
or uniquely impacted by the rule.
EPA has determined that the partial
approval/partial disapproval and
limited approval/limited disapproval
actions proposed do not include a
Federal mandate that may result in
estimated costs of $100 million or more
to either State, local, or tribal
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governments in the aggregate, or to the
private sector. This Federal action
proposes to approve and disapprove
pre-existing requirements under State or
local law, and imposes no new
requirements. Accordingly, no
additional costs to State, local, or tribal
governments, or to the private sector,
result from this action.
E. Executive Order 13132, Federalism
Executive Order 13132 (64 FR 43255,
August 10, 1999) revokes and replaces
Executive Orders 12612 (Federalism)
and 12875 (Enhancing the
Intergovernmental Partnership).
Executive Order 13132 requires EPA to
develop an accountable process to
ensure ‘‘meaningful and timely input by
State and local officials in the
development of regulatory policies that
have federalism implications.’’ ‘‘Policies
that have federalism implications’’ is
defined in the Executive Order to
include regulations that have
‘‘substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government.’’ Under Executive
Order 13132, EPA may not issue a
regulation that has federalism
implications, that imposes substantial
direct compliance costs, and that is not
required by statute, unless the Federal
government provides the funds
necessary to pay the direct compliance
costs incurred by State and local
governments, or EPA consults with
State and local officials early in the
process of developing the proposed
regulation. EPA also may not issue a
regulation that has federalism
implications and that preempts State
law unless the Agency consults with
State and local officials early in the
process of developing the proposed
regulation.
This rule will not have substantial
direct effects on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132, because it
merely proposes to approve or
disapprove a State rule implementing a
federal standard, and does not alter the
relationship or the distribution of power
and responsibilities established in the
Clean Air Act. Thus, the requirements of
section 6 of the Executive Order do not
apply to this rule.
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F. Executive Order 13175, Coordination
With Indian Tribal Governments
Executive Order 13175, entitled
‘‘Consultation and Coordination with
Indian Tribal Governments’’ (65 FR
67249, November 9, 2000), requires EPA
to develop an accountable process to
ensure ‘‘meaningful and timely input by
tribal officials in the development of
regulatory policies that have tribal
implications.’’ This proposed rule does
not have tribal implications, as specified
in Executive Order 13175. It will not
have substantial direct effects on tribal
governments, 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.
Thus, Executive Order 13175 does not
apply to this rule.
EPA specifically solicits additional
comment on this proposed rule from
tribal officials.
G. Executive Order 13045, Protection of
Children From Environmental Health
Risks and Safety Risks
EPA interprets Executive Order 13045
(62 FR 19885, April 23, 1997) as
applying only to those regulatory
actions that concern health or safety
risks, such that the analysis required
under section 5–501 of the Executive
Order has the potential to influence the
regulation. This rule is not subject to
Executive Order 13045, because it
approves a state rule implementing a
Federal standard.
mstockstill on DSKH9S0YB1PROD with PROPOSALS
H. Executive Order 12898, Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order 12898, ‘‘Federal
Actions to Address Environmental
Justice in Minority Populations and
Low-Income Populations’’ (February 16,
1994) establishes federal executive
policy on environmental justice. Its
main provision directs federal agencies,
to the greatest extent practicable and
permitted by law, to make
environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies and activities on minority
populations and low-income
populations in the United States. The
Executive Order has informed the
development and implementation of
EPA’s environmental justice program
and policies. Consistent with the
Executive Order and the associated
Presidential Memorandum, the
Agency’s environmental justice policies
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promote environmental protection by
focusing attention and Agency efforts on
addressing the types of environmental
harms and risks that are prevalent
among minority, low-income and Tribal
populations.
This action will not have
disproportionately high and adverse
human health or environmental effects
on minority, low-income or Tribal
populations because the partial
approval/partial disapproval and
limited approval/limited disapproval
actions proposed increase the level of
environmental protection for all affected
populations without having any
disproportionately high and adverse
human health or environmental effects
on any population, including any
minority or low-income population.
I. Executive Order 13211, Actions That
Significantly Affect Energy Supply,
Distribution, or Use
This proposed rule is not subject to
Executive Order 13211, ‘‘Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355, May
22, 2001) because it is not a significant
regulatory action under Executive Order
12866.
J. National Technology Transfer and
Advancement Act
Section 12 of the National Technology
Transfer and Advancement Act
(NTTAA) of 1995 requires Federal
agencies to evaluate existing technical
standards when developing a new
regulation. To comply with NTTAA,
EPA must consider and use ‘‘voluntary
consensus standards’’ (VCS) if available
and applicable when developing
programs and policies unless doing so
would be inconsistent with applicable
law or otherwise impractical.
EPA believes that VCS are
inapplicable to this action. Today’s
action does not require the public to
perform activities conducive to the use
of VCS.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Intergovernmental
relations, Particulate matter, Reporting
and recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: September 3, 2010.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2010–22616 Filed 9–8–10; 8:45 am]
BILLING CODE 6560–50–P
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Frm 00028
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54821
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 300
[EPA–HQ–SFUND–1983–0002; FRL–9198–7]
National Oil and Hazardous Substance
Pollution Contingency Plan; National
Priorities List; Intent for Partial
Deletion of the Denver Radium
Superfund Site
Environmental Protection
Agency.
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) Region 8 is issuing a
Notice of Intent to Delete each of the 11
operable units, with the exception of
groundwater contamination associated
with Operable Unit 8, of the Denver
Radium Superfund Site (Site), located in
the City and County of Denver,
Colorado, from the National Priorities
List (NPL) and requests public
comments on this proposed action.
Groundwater associated with Operable
Unit 8 will remain on the NPL. The
NPL, promulgated pursuant to section
105 of the Comprehensive
Environmental Response,
Compensation, and Liability Act
(CERCLA) of 1980, as amended, is an
Appendix of the National Oil and
Hazardous Substances Pollution
Contingency Plan (NCP). The EPA and
the State of Colorado, through the
Colorado Department of Public Health
and Environment, have determined that
all appropriate response actions at these
identified parcels under CERCLA, other
than operations and maintenance and
five-year reviews, have been completed.
However, this deletion does not
preclude future actions under
Superfund.
This partial deletion pertains to each
of the 11 operable units of the Denver
Radium Superfund Site. Groundwater
contamination associated with Operable
Unit 8 will remain on the NPL and is
not being considered for deletion at this
time.
DATES: Comments must be received by
October 12, 2010.
ADDRESSES: Submit your comments,
identified by Docket ID no. EPA–HQ–
SFUND–1983–0002, by one of the
following methods:
• https://www.regulations.gov. Follow
on-line instructions for submitting
comments.
• E-mail: dalton.john@epa.gov.
• Fax: 303–312–7110 (Attention: John
Dalton, Public Affairs and Involvement).
• Mail: John Dalton, Public Affairs
and Involvement (8OCPI), U.S. EPA
SUMMARY:
E:\FR\FM\09SEP1.SGM
09SEP1
]]>Agencies
[Federal Register Volume 75, Number 174 (Thursday, September 9, 2010)]
[Proposed Rules]
[Pages 54806-54821]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-22616]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2010-0715; FRL-9200-3]
Approval and Promulgation of Implementation Plans--Maricopa
County (Phoenix) PM-10 Nonattainment Area; Serious Area Plan for
Attainment of the 24-Hour PM-10 Standard; Clean Air Act Section 189(d)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
EPA is proposing to approve in part and disapprove in part State
implementation plan (SIP) revisions submitted by the State of Arizona
to meet the Clean Air Act (CAA) requirements applicable to the serious
Maricopa County (Phoenix) nonattainment area (Maricopa area). These
requirements apply to the Maricopa area following EPA's June 6, 2007
finding that the area failed to meet its December 31, 2006 serious area
deadline to attain the national ambient air quality standards (NAAQS)
for particulate matter of ten microns or less (PM-10). Under CAA
section 189(d), Arizona was required to submit a plan by December 31,
2007 providing for expeditious attainment of the PM-10 NAAQS and for an
annual emission reduction in PM-10 or PM-10 precursors of not less than
five percent per year until attainment (189(d) plan). EPA is proposing
to disapprove provisions of the 189(d) plan for the Maricopa area
because they do not meet applicable CAA requirements for emissions
inventories as well as for attainment, five percent annual emission
reductions, reasonable further progress and milestones, and contingency
measures. EPA is also proposing to disapprove the 2010 motor vehicle
emission budget in the 189(d) plan as not meeting the requirements of
CAA section 176(c) and 40 CFR 93.118(e)(4). EPA is also proposing a
limited approval and limited disapproval of State regulations for the
control of PM-10 from agricultural sources. Finally, EPA is proposing
to approve various provisions of State statutes relating to the control
of PM-10 emissions in the Maricopa area.
DATES: Any comments must arrive by October 12, 2010.
ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2010-0715, by one of the following methods:
1. Federal eRulemaking Portal: https://www.regulations.gov. Follow
the on-line instructions.
2. E-mail: nudd.gregory@epa.gov.
3. Mail or deliver: Gregory Nudd (Air-2), U.S. Environmental
Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA
94105-3901.
Instructions: All comments will be included in the public docket
without change and may be made available online at https://www.regulations.gov, including any personal information provided,
unless the comment includes Confidential Business Information (CBI) or
other information whose disclosure is restricted by statute.
Information that you consider CBI or otherwise protected should be
clearly identified as such and should not be submitted through https://www.regulations.gov or e-mail. https://www.regulations.gov is an
``anonymous access'' system, and EPA will not know your identity or
contact information unless you provide it in the body of your comment.
If you send e-mail directly to EPA, your e-mail address will be
automatically captured and included as part of the public comment. If
EPA cannot read your comment due to technical difficulties and cannot
contact you for clarification, EPA may not be able to consider your
comment.
Docket: The index to the docket for this action is available
electronically at https://www.regulations.gov and in hard copy at EPA
Region IX, 75 Hawthorne Street, San Francisco, California. While all
documents in the docket are listed in the index, some information may
be publicly available only at the hard copy location (e.g., copyrighted
material), and some may not be publicly available in either location
(e.g., CBI). To inspect the hard copy materials, please schedule an
appointment during normal business hours with the contact listed in the
FOR FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Gregory Nudd, U.S. EPA Region 9, 415-
947-4107, nudd.gregory@epa.gov or https://www.epa.gov/region09/air/actions.
SUPPLEMENTARY INFORMATION: Throughout this document, the terms ``we,''
``us,'' and ``our'' mean U.S. EPA.
Table of Contents
I. PM-10 Air Quality Planning in the Maricopa Area
II. Overview of Applicable CAA Requirements
III. Evaluation of the 189(d) Plan's Compliance With CAA
Requirements
IV. Summary of Proposed Actions
V. Statutory and Executive Order Reviews
I. PM-10 Air Quality Planning in the Maricopa Area
The NAAQS are standards for certain ambient air pollutants set by
EPA to protect public health and welfare. PM-10 is among the ambient
air pollutants for which EPA has established health-based standards.
PM-10 causes adverse health effects by penetrating deep in the lungs,
aggravating the cardiopulmonary system. Children, the elderly, and
people with asthma and heart conditions are the most vulnerable.
On July 1, 1987 EPA revised the health-based national ambient air
quality standards (52 FR 24672), replacing the standards for total
suspended particulates with new standards applying only to particulate
matter up to ten microns in diameter (PM-10). At that time, EPA
established two PM-10 standards, annual standards and 24-hour
standards. Effective December 18, 2006, EPA revoked the annual PM-10
standards but retained the 24-hour PM-10 standards. 71 FR 61144
(October 17, 2006). The 24-hour PM-10 standards of 150 micrograms per
cubic meter ([mu]g/m\3\) are attained when the expected number of days
per calendar year with a 24-hour average concentration above 150 [mu]g/
m\3\, as determined in accordance with appendix K to 40 CFR part 50, is
equal to or less than one. 40 CFR 50.6 and 40 CFR part 50, appendix K.
On the date of enactment of the 1990 Clean Air Act Amendments (CAA
or the
[[Page 54807]]
Act), many areas, including the Maricopa area, meeting the
qualifications of section 107(d)(4)(B) of the amended Act were
designated nonattainment by operation of law. 56 FR 11101 (March 15,
1991). The Maricopa area is located in the eastern portion of Maricopa
County and encompasses the cities of Phoenix, Mesa, Scottsdale, Tempe,
Chandler, Glendale, as well as 17 other jurisdictions and
unincorporated County lands. The nonattainment area also includes the
town of Apache Junction in Pinal County. EPA codified the boundaries of
the Maricopa area at 40 CFR 81.303.
Once an area is designated nonattainment for PM-10, section 188 of
the CAA outlines the process for classifying the area as moderate or
serious and establishes the area's attainment deadline. In accordance
with section 188(a), at the time of designation, all PM-10
nonattainment areas, including the Maricopa area, were initially
classified as moderate.
A moderate PM-10 nonattainment area must be reclassified to serious
PM-10 nonattainment by operation of law if EPA determines after the
applicable attainment date that, based on air quality, the area failed
to attain by that date. CAA sections 179(c) and 188(b)(2). On May 10,
1996, EPA reclassified the Maricopa area as a serious PM-10
nonattainment area. 61 FR 21372.
As a serious PM-10 nonattainment area, the Maricopa area acquired a
new attainment deadline of no later than December 31, 2001. CAA section
188(c)(2). However CAA section 188(e) allows states to apply for up to
a 5-year extension of that deadline if certain conditions are met. In
order to obtain the extension, there must be a showing that: (1)
Attainment by the applicable attainment date would be impracticable;
(2) the state complied with all requirements and commitments pertaining
to the area in the implementation plan for the area; and (3) the state
demonstrates that the plan for the area includes the most stringent
measures (MSM) that are included in the implementation plan of any
state or are achieved in practice in any state, and can feasibly be
implemented in the specific area. Arizona requested an attainment date
extension under CAA section 188(e) from December 31, 2001 to December
31, 2006.
On July 25, 2002, EPA approved the serious PM-10 plan for the
Maricopa area as meeting the requirements for such areas in CAA
sections 189(b) and (c), including the requirements for implementation
of best available control measures (BACM) in section 189(b)(1)(B) and
MSM in section 188(e). In the same action, EPA granted Arizona's
request to extend the attainment date for the area to December 31,
2006. 67 FR 48718. This final action, as well as the two proposals
preceding it, provide a more detailed discussion of the history of PM-
10 planning in the Maricopa area. See 65 FR 19964 (April 13, 2000) and
66 FR 50252 (October 2, 2001).
On June 6, 2007, EPA found that the Maricopa area failed to attain
the 24-hour PM-10 NAAQS by December 31, 2006 (72 FR 31183) and required
the submittal of a new plan meeting the requirements of section 189(d)
by December 31, 2007.
On December 19, 2007, the Maricopa Association of Governments (MAG)
adopted the ``MAG 2007 Five Percent Plan for PM-10 for the Maricopa
County Nonattainment Area.'' In this proposal, we refer to this plan as
the ``189(d) plan.'' On December 21, 2007 the Arizona Department of
Environmental Quality (ADEQ) submitted the 189(d) plan and two Pinal
County resolutions.\1\ MAG adopted and ADEQ submitted this SIP revision
in order to address the CAA requirements in section 189(d).
---------------------------------------------------------------------------
\1\ Subsequently, in June 4, 2008 and February 23, 2009 letters
from Nancy C. Wrona, ADEQ, to Deborah Jordan, EPA, the State
submitted ``Supplemental Information to Section 189(d) 5% Reasonable
Further Progress PM-10 SIP Revisions for the Maricopa County and
Apache Junction (Metropolitan Phoenix) Nonattainment Area.''
---------------------------------------------------------------------------
CAA section 110(k)(1) requires EPA to determine whether a SIP
submission is complete within 60 days of receipt. This section also
provides that any plan that has not been affirmatively determined to be
complete or incomplete shall become complete within 6 months by
operation of law. EPA's completeness criteria are found in 40 CFR part
51, appendix V. The 189(d) plan submittal became complete by operation
of law on June 21, 2008.
II. Overview of Applicable CAA Requirements
As a serious PM-10 nonattainment area that failed to meet its
applicable attainment date, December 31, 2006, the Maricopa area is
subject to CAA section 189(d) which provides that the state shall
``submit within 12 months after the applicable attainment date, plan
revisions which provide for attainment of the PM-10 air quality
standard and, from the date of such submission until attainment, for an
annual reduction of PM-10 or PM-10 precursor emissions within the area
of not less than 5 percent of the amount of such emissions as reported
in the most recent inventory prepared for the area.''
The general planning and control requirements for all nonattainment
plans are found in CAA sections 110 and 172. EPA has issued a General
Preamble \2\ and Addendum to the General Preamble \3\ describing our
preliminary views on how the Agency intends to review SIPs submitted to
meet the CAA's requirements for the PM-10 NAAQS. The General Preamble
mainly addresses the requirements for moderate nonattainment areas and
the Addendum, the requirements for serious nonattainment areas. EPA has
also issued other guidance documents related to PM-10 plans which are
cited as necessary below. In addition, EPA addresses the adequacy of
the motor vehicle budget for transportation conformity (CAA section
176(c)) in this proposed plan action. The PM-10 plan requirements
addressed by this proposed action are summarized below.
---------------------------------------------------------------------------
\2\ ``State Implementation Plans; General Preamble for the
Implementation of Title I of the Clean Air Act Amendments of 1990,''
57 FR 13498 (April 16, 1992) (General Preamble) and 57 FR 18070
(April 28, 1992).
\3\ ``State Implementation Plans for Serious PM-10 Nonattainment
Areas, and Attainment Date Waivers for PM-10 Nonattainment Areas
Generally; Addendum to the General Preamble for the Implementation
of Title I of the Clean Air Act Amendments of 1990,'' 59 FR 41998
(August 16, 1994) (Addendum).
---------------------------------------------------------------------------
A. Emissions Inventories
CAA section 172(c)(3) requires that an attainment plan include a
comprehensive, accurate, and current inventory of actual emissions from
all sources of the relevant pollutants.
B. Attainment Demonstration
The attainment deadline applicable to an area that misses the
serious area attainment date is as soon as practicable, but no later
than 5 years from the publication date of the nonattainment finding
notice. EPA may, however, extend the attainment deadline to the extent
it deems appropriate for a period no greater than 10 years from the
publication date, ``considering the severity of nonattainment and the
availability and feasibility of pollution control measures.'' CAA
sections 179(d)(3) and 189(d).
C. Five Percent (5%) Requirement
A 189(d) plan must provide for an annual reduction of PM-10 or PM-
10 precursor emissions within the area of not less than 5% of the
amount of such emissions as reported in the most recent inventory
prepared for the area.
[[Page 54808]]
D. Reasonable Further Progress and Quantitative Milestones
CAA section 172(c)(2) requires that implementation plans
demonstrate reasonable further progress (RFP) as defined in section
171(1). Section 171(1) defines RFP as ``such annual incremental
reductions in emissions of the relevant air pollutant as are required
by this part [part D of title I] or may reasonably be required by the
Administrator for the purpose of ensuring attainment of the applicable
national ambient air quality standard by the applicable date.''
Section 189(c)(1) requires the plan to contain quantitative
milestones which will be achieved every 3 years and which will
demonstrate that RFP is being met.
E. Contingency Measures
CAA section 172(c)(9) requires that implementation plans provide
for ``the implementation of specific measures to be undertaken if the
area fails to make reasonable further progress, or to attain the
[NAAQS] by the attainment date applicable under this part [part D of
title I]. Such measures are to take effect in any such case without
further action by the State or the Administrator.''
F. Transportation Conformity and Motor Vehicle Emissions Budgets
Transportation conformity is required by CAA section 176(c). Our
conformity rule (40 CFR part 93, subpart A) requires that
transportation plans, programs, and projects conform to state air
quality implementation plans and establishes the criteria and
procedures for determining whether or not they do so. Conformity to a
SIP means that transportation activities will not produce new air
quality violations, worsen existing violations, or delay timely
attainment of the NAAQS or any interim milestone. Once a SIP that
contains motor vehicle emissions budgets (MVEBs) has been submitted to
EPA, and EPA has found it adequate, these budgets are used for
determining conformity: emissions from planned transportation
activities must be less than or equal to the budgets.
G. Adequate Legal Authority and Resources
CAA section 110(a)(2)(E)(i) requires that implementation plans
provide necessary assurances that the state (or the general purpose
local government) will have adequate personnel, funding and authority
under state law. Requirements for legal authority are further defined
in 40 CFR part 51, subpart L (51.230-51.232) and for resources in 40
CFR 51.280. States and responsible local agencies must also demonstrate
that they have the legal authority to adopt and enforce provisions of
the SIP and to obtain information necessary to determine compliance.
SIPs must also describe the resources that are available or will be
available to the State and local agencies to carry out the plan, both
at the time of submittal and during the 5-year period following
submittal of the SIP.
III. Evaluation of the 189(d) Plan's Compliance With CAA Requirements
A. Emissions Inventories
CAA section 172(c)(3) requires all nonattainment area plans to
contain a comprehensive, accurate, and current inventory of emissions
from all sources of the relevant pollutants in the geographic area
encompassed in the plan. EPA believes that the inventories submitted by
Arizona as part of the 189(d) plan for the Maricopa area are
comprehensive and current, but are not sufficiently accurate as
discussed below.
MAG developed the 189(d) plan using the ``2005 Periodic Emissions
Inventory for the Maricopa County, Arizona Nonattainment Area,'' May
2007 (2005 Periodic Inventory). 189(d) plan, appendices, volume one,
appendix B, exhibit 1. This inventory was developed by the Maricopa
County Air Quality Department (MCAQD) as the baseline inventory for the
area. 189(d) plan, p. 3-2.
MAG used economic growth estimates to project 2007, 2008, 2009 and
2010 emissions inventories for the area from the 2005 Periodic
Inventory baseline. MAG then used these projected inventories to
calculate the 5% reduction target required by section 189(d) and as the
baseline for the RFP demonstration required by section 189(c).\4\ See
189(d) plan, appendices, volume three, ``Technical Document in Support
of the MAG 2007 Five Percent Plan for PM-10 for the Maricopa County
Nonattainment Area,'' (189(d) plan TSD), chapter II.
---------------------------------------------------------------------------
\4\ The 189(d) plan projects that the Maricopa area will attain
the PM-10 standard by December 31, 2010. For the 5% demonstration,
the plan projects emission reductions in 2008, 2009 and 2010. The
RFP demonstration shows annual emission reductions in a downward
linear trend from 2007 to 2010. See 189(d) plan, chapters 7 and 8,
and discussions of these demonstrations below.
---------------------------------------------------------------------------
The 2005 Periodic Inventory prepared for the Maricopa area
describes and quantifies the annual and daily emissions of PM-10 from
point, area, nonroad, on-road, and nonanthropogenic sources in the
2,880 square mile nonattainment area.\5\ The 2005 Periodic Inventory
indicates that the dominant sources of PM-10 emissions in the Maricopa
area are construction-related fugitive dust, including residential,
commercial, road and other land clearing (38 percent); paved road dust,
including trackout (16 percent); unpaved roads (10 percent); and
windblown dust (9 percent). 2005 Periodic Inventory, table 1.6-11.
---------------------------------------------------------------------------
\5\ The 2005 Periodic Inventory in the 189(d) plan also includes
data on PM-10 precursors. However, a scientific analysis of the
particulate matter found on filters on exceedance days indicates
that the vast majority of PM-10 on these days is directly emitted
PM-10 such as soil dust. See attachment, ``On speciated PM in the
Salt River industrial area in 2002,'' dated January 22, 2010, to E-
mail from Peter Hyde, Arizona State University, to Gregory Nudd,
EPA, July 30, 2010. Therefore, the 189(d) plan appropriately focuses
on directly emitted PM-10.
---------------------------------------------------------------------------
EPA has evaluated the base year inventory relied on by MAG in light
of the three criteria in section 172(c)(3) and our conclusions follow.
Current: The base year, 2005, is a reasonably current year,
considering the length of time needed to develop an inventory and
thereafter to develop a plan based on it. The 2005 Periodic Inventory
was the most recent inventory available when the 189(d) plan was
developed.
Comprehensive: The 189(d) plan's inventories are sufficiently
complete. All of the relevant source categories are quantified.
Accurate: The 2005 Periodic Inventory is not sufficiently accurate
for the purposes of the 189(d) plan. As discussed below, this inventory
and the subsequent year inventories that MAG derived from it
overestimate the baseline emissions for construction and other sources.
The accuracy of the baseline inventory is particularly important for
this plan because it relies heavily on reductions from improving the
effectiveness of existing rules \6\ for construction and other sources
in order to meet the CAA's 5%, RFP and attainment requirements. See
189(d) plan, chapters 7 and 8.
---------------------------------------------------------------------------
\6\ Rule effectiveness is an estimate of the ability of a
regulatory program to achieve all of the emission reductions that
could have been achieved by full compliance with the applicable
regulations at all sources at all times. EPA requires a state to
account for rule effectiveness when estimating emissions from source
categories that are subject to regulations that reduce emissions.
See ``Emissions Inventory Guidance for Implementation of Ozone and
Particulate Matter National Ambient Air Quality Standards (NAAQS)
and Regional Haze Regulations,'' EPA-454/R-05-001, November 2005
(2005 Emissions Inventory Guidance), p. B-3.
---------------------------------------------------------------------------
MCAQD Rule 310 requires control measures for dust generating
activities such as excavation, construction, demolition and bulk
material handling. According to the 2005 Periodic Inventory, the
majority of emissions subject to control under Rule 310 are from
residential, commercial and road
[[Page 54809]]
construction. Measure 8 in the 189(d) plan is a commitment to
implement proactive and complaint based inspections during night-time
and on weekends and is a telling example of how the 189(d) plan depends
primarily on improving Rule 310 effectiveness to demonstrate the
required annual 5% reductions and RFP. The plan asserts that Measure
8 will reduce PM-10 emissions by 1,884 tons per year (tpy).
189(d) plan, p. 7-3. Of that, 1,694 tpy are attributed to increases in
compliance, and therefore in the effectiveness, of Rule 310. 189(d)
plan TSD, p. III-5. This pattern is repeated in Measures 2,
3, 9, 10, 16, and 44, with
a large majority of the 189(d) plan's total emissions reductions
derived from increased compliance with Rule 310. This pattern is
further detailed in table 2 below.
For the 2005 Periodic Inventory, MCAQD used a set of 63 sample
inspections of sources subject to Rule 310 in order to estimate its
effectiveness.\7\ An analysis of these inspections yielded an estimated
rule effectiveness of 51 percent. However, an analysis conducted by
MCAQD of the entire database of over 11,000 relevant inspections during
the time period of the sample inspections yielded an estimated rule
effectiveness of 64.5 percent. In other words, examination of the
larger database suggests that a significantly higher percentage of
sources were in compliance, and accordingly the aggregate emissions
inventory for this source category could be proportionately smaller
than that suggested by the smaller set of sample inspections. While
MCAQD conducted this analysis in 2010, after the development of the
189(d) plan, the data and the method were available at the time it
produced the 2005 Periodic Inventory.\8\ Table 1 below shows the impact
of these two different rule effectiveness values on the estimate of
fugitive dust emissions from construction sources in the Maricopa area.
The data in table 1 are from the emission rate back-casting analysis
conducted by MCAQD in 2010.\9\
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\7\ 2005 Periodic Inventory, appendix 2.2, ``Rule Effectiveness
Study for the Maricopa County Rules 310, 310.01, and 316.''
\8\ The data from the 2010 analysis were from inspections
conducted at the time the original rule effectiveness calculation
was being developed, so that information should have been in the
MCAQD's database. The analytical method was a hybrid of a simple
average of the results in the inspection database and the 2005
Emissions Inventory Guidance.
\9\ E-mail from Matthew Poppen, MCAQD, to Gregory Nudd, EPA,
``Back-casting of RE rates,'' April 19, 2010 (Poppen E-mail).
Table 1--Impact of Rule 310 Effectiveness Methodology on Estimated Emissions From Construction Activity
----------------------------------------------------------------------------------------------------------------
Estimated 2005
Rule emissions for
Estimation method effectiveness construction
(percent) activity (tons
per year)
----------------------------------------------------------------------------------------------------------------
Sample Rule 310 inspections (63 total inspections between July and December 51 32,130
2006)......................................................................
All Rule 310 inspections (over 11,000 between July 2006 and June 2007)...... 64.5 24,968
----------------------------------------------------------------------------------------------------------------
Difference in emissions....................................................................... 7,162
(-22%)
----------------------------------------------------------------------------------------------------------------
EPA believes that analysis of the full database of 11,000 Rule 310
inspections provides a more accurate measure of rule effectiveness than
using a sample of 63 inspections. This is because the 63 inspections
may not be representative of the entire population of sources covered
by the rule. The larger data set is much more likely to be free of
sample biases. Therefore, based on this analysis of the larger data
set, EPA has determined that the initial estimate of rule effectiveness
for Rule 310 was not accurate.
There is a similar inaccuracy in the rule effectiveness
calculations for MCAQD Rule 310.01\10\ for unpaved parking lots,
unpaved roads and similar sources of fugitive dust emissions. For the
2005 Periodic Inventory, MCAQD used a set of 124 sample inspections to
estimate the effectiveness of Rule 310.01. 2005 Periodic Inventory,
appendix 2.2. An analysis of these inspections yielded an estimated
rule effectiveness of 68 percent. However, an analysis conducted by
MCAQD of the entire database of over 4,500 relevant inspections during
the time period of the sample inspections yielded an estimated rule
effectiveness of 90 percent. See Poppen Email.
---------------------------------------------------------------------------
\10\ EPA is also concerned that the method MCAQD used to
estimate rule effectiveness for non-metallic mineral processing and
other sources subject to Rule 316 is dependent on qualitative
factors rather than compliance data.
\11\ This data summary was compiled from the emission reduction
calculations found in the 189(d) plan TSD, chapter III.
---------------------------------------------------------------------------
The significance of the inventory inaccuracies discussed above is
graphically depicted in table 2:
Table 2\11\--Measures To Improve Compliance With Rules 310 and 310.01
Compared to All Measures Supporting the Attainment, 5% and RFP
Demonstrations
------------------------------------------------------------------------
2008 2009 2010
------------------------------------------------------------------------
Total reductions from attainment, 5% and 6,603 15,422 19,840
RFP measures [tpy].......................
Reductions from measures to improve rule 4,658 11,292 15,244
effectiveness of Rule 310................
Reductions from measures to improve rule 360 1,061 1,063
effectiveness of Rule 310.01.............
% of reductions from such measures........ 76% 80% 82%
------------------------------------------------------------------------
As shown in table 2, the 189(d) plan is designed to achieve the
additional reductions in emissions required for the attainment, 5% and
RFP demonstrations primarily through improvements in rule effectiveness
for the sources regulated
[[Page 54810]]
by Rules 310 and 310.01. The inaccuracies in the baseline emissions
inventory were carried through into the future year emission
inventories and the calculations of emission reductions for those
demonstrations.
Moreover, the underestimation of the effectiveness of Rules 310 and
310.01 resulted in a control strategy with a high probability of
failure because the over-emphasis on achieving emission reductions from
the sources regulated by these rules likely resulted in a corresponding
de-emphasis on emission reductions from other sources contributing to
the nonattainment problem in the Maricopa area. In table 3 below we
compare the projected percentage of 2010 emissions attributable to
certain source categories before implementation of the 189(d) plan's
controls to the projected percentage of emission reductions attributed
to controls for these categories in 2010. The source categories are
those contributing more than 5% to the projected 2010 inventory of
annual PM-10 emissions. See 189(d) TSD, pp. II-17 and chapter III.
Table 3--Comparison of the 2010 Emissions Reductions Expected From the
Control Measures to the Proportion of 2010 Emissions for Principal
Sources of PM-10 in the Nonattainment Area
------------------------------------------------------------------------
Percentage of
Percentage of estimated 2010
Source category pre-control emission
2010 emissions reductions
------------------------------------------------------------------------
Construction........................ 33.1 82.5
Paved Roads (including trackout).... 19.1 5.1
Unpaved Roads....................... 17.4 0.0
Fuel Combustion and Fires........... 5.6 0.2
Windblown dust from vacant land..... 5.4 7.7
Other Sources (<5% each)............ 19.4 4.5
------------------------------------------------------------------------
As can be seen from this comparison, the plan's emphasis on
reducing emissions from the construction industry is out of proportion
to that source category's relative contribution to the projected 2010
inventory.
For the reasons discussed above, EPA is proposing to disapprove
under CAA section 110(k)(3) the 2005 baseline emissions inventory in
the 189(d) plan and all of the projected inventories as not meeting the
requirements of section 172(c)(3).
B. Measures in the 189(d) Plan
1. Introduction
The 189(d) plan contains 53 measures designed to reduce emissions
of PM-10. A detailed description and implementation schedule for each
measure is provided in chapter 6 of the plan. Of the 53 measures, 25
measures are intended to support the attainment, RFP and 5%
demonstrations provided in the plan, and 9 are contingency measures.
These measures incorporate differing strategies to target emissions
from a variety of activities within the Maricopa area. The remaining
measures are included to represent additional efforts by the State and
local jurisdictions to reduce emissions beyond those quantified in the
plan. As those measures are implemented, the 189(d) plan provides that
a more detailed assessment of the air quality benefits may be developed
and reported in the future.
EPA is proposing action on the measures in the 189(d) plan that
constitute mandatory directives to the regulated community or to
various local jurisdictions to adopt certain legislative requirements.
These measures typically involve emissions reductions that can be
reasonably quantified, and/or regulatory components that are
enforceable. The 189(d) plan does not take specific emission reduction
credits for the additional measures referred to above where the ability
to quantify emission reductions was considered to be limited.
In reviewing a statute, regulation, or rule for SIP approval, EPA
looks to ensure that the provision is enforceable as required by CAA
section 110(a), is consistent with all applicable EPA guidance, and
does not relax existing SIP requirements as required by CAA sections
110(l) and 193. Guidance and policy documents that we use to evaluate
enforceability and PM-10 rules include the following:
1. ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and
Deviations; Clarification to Appendix D of November 24, 1987 Federal
Register Notice,'' (Blue Book), notice of availability published in the
May 25, 1988 Federal Register.
2. ``Guidance Document for Correcting Common VOC & Other Rule
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).
3. ``State Implementation Plans; General Preamble for the
Implementation of Title I of the Clean Air Act Amendments of 1990,'' 57
FR 13498 (April 16, 1992) (General Preamble); 57 FR 18070 (April 28,
1992).
4. ``State Implementation Plans for Serious PM-10 Nonattainment
Areas, and Attainment Date Waivers for PM-10 Nonattainment Areas
Generally; Addendum to the General Preamble for the Implementation of
Title I of the Clean Air Act Amendments of 1990,'' 59 FR 41998 (August
16, 1994) (Addendum).
5. ``PM-10 Guideline Document,'' EPA 452/R-93-008, April 1993.
2. Measures Proposed for Approval
EPA has identified the State statutory provisions submitted with
the 189(d) plan that implement the directives in each measure for which
we are proposing action. Many of the 189(d) plan measures refer to
Arizona Senate Bill 1552 (SB 1552). In 2007, the Arizona Legislature
passed SB 1552, which includes several air quality provisions designed
to reduce PM-10. SB 1552 adds new and amends existing provisions of the
Arizona Revised Statutes (ARS) and is included in the 189(d) plan
submittal. 189(d) plan, chapter 10, ``Commitments for Implementation,''
volume two. We are proposing to approve the sections of the ARS that
implement the plan measures identified in table 4 below. For ease of
discussion, the statutory provisions that we are proposing to approve
are associated with measures that can be generally grouped into seven
categories: on-site dust management, certification programs, vehicle
use, leaf blowers, unpaved areas, burning and agriculture. A brief
discussion of each category is provided after the table.
[[Page 54811]]
Table 4--189(d) Plan Measure Categories and Associated Statutory
Provisions
------------------------------------------------------------------------
Measure numbers Associated statutory
Category from 189(d) plan provisions
------------------------------------------------------------------------
On-site management............ 2, 3, 16......... ARS 49-474.05.
Certification programs........ 5*, 24*.......... ARS 9-500.04, ARS 49-
457.02,
ARS 49-474.01.
Vehicle Use................... 19*, 23, 31, 46.. ARS 9-500.04, ARS 9-
500.27, ARS 49-
457.03, ARS 49-
457.04, ARS 49-
474.01.
Leaf blowers.................. 18, 21, 22, 45... ARS 9-500.04, ARS 11-
877, ARS 49-457.01.
Unpaved areas................. 25, 26*, 28, 33.. ARS 9-500.04, ARS 28-
6705, ARS 49-474.01.
Burning....................... 35, 47........... ARS 49-501.
Agriculture................... 50*.............. ARS 49-457.\12\
------------------------------------------------------------------------
* The State submitted these measures as contingency measures pursuant to
CAA section 172(c)(9). See section III.F below for further discussion.
With the exception of ARS 49-457, discussed in section III.B.3
below, and ARS 49-474.01, the ARS sections listed above are not
currently in the Arizona SIP. On August 10, 1988, we approved an
earlier version of ARS 49-474.01 that was submitted by the State to EPA
on May 22, 1987. 53 FR 30224. In comparison to this previously approved
version, the newly submitted version of ARS 49-474.01 contains several
additional requirements regarding unstabilized areas and vehicle use
that make the statutory provision more stringent. Therefore, we believe
the current submitted version of ARS 49-474.01 represents a
strengthening of the SIP and is consistent with the relevant policy and
guidance regarding SIP relaxations.
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\12\ Measure 50 concerns the State statutory and
regulatory program for the control of PM-10 from agricultural
sources in the Maricopa area. The program is codified in ARS 49-457
and Arizona Administrative Code (AsAC) R18-2-610 and R18-2-611. ARS
49-457 established the program and authorized a committee to adopt
implementing regulations. While we are proposing to fully approve
the amendment to ARS-457 which was submitted with the 189(d) plan,
we do not describe it further in this section because we address the
agricultural program in detail in section III.B.3 below.
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On-Site Management
Many of the 189(d) plan measures are related to the reduction of
PM-10 emissions through dust control training and on-site management by
trained personnel. Measures 2 and 3 address
development of basic and comprehensive training programs for the
suppression of emissions. The program requires completion of dust
control training for water truck and water pull drivers, and on-site
representatives of sites with more than one acre of disturbed surface
area subject to a permit requiring control of PM-10 emissions. Any site
with five or more acres of disturbed surface area subject to a permit
requiring control of PM-10 emissions will be required to have a trained
dust control coordinator on site. Measure 16 involves the
requirement for subcontractors engaged in dust generating operations to
be registered with the control officer. These measures are implemented
through ARS 49-474.05. See 189(d) plan, pp. 6-20, 6-24, 6-42, and 6-46.
Certification Programs
Some of the 189(d) plan measures seek to achieve emissions
reductions through certification of equipment or personnel. In certain
cases, the certification program is intended to provide an incentive
for voluntary emission reductions and good operating practices. In
other cases, the certification program seeks to maintain an appropriate
level of emissions control from regularly used equipment. Measure
5 directs ADEQ to establish the Dust-Free Developments
Program. The purpose of this program is to certify persons and entities
that demonstrate exceptional commitment to the reduction of airborne
dust. See ARS 49-457.02 and 189(d) plan, p. 6-29. Measure 24
directs cities and towns to require that new or renewed contracts for
sweeping of city streets must be conducted with certified street
sweepers. Street sweepers must meet the certification specifications
contained in South Coast Air Quality Management District (SCAQMD) Rule
1186. See ARS 9-500.04, ARS 49-474.01, and 189(d) plan, p. 6-72.
Vehicle Use
Because vehicle use often generates PM-10 emissions, the 189(d)
plan addresses several different activities related to vehicle use.
Measures 19, 23, and 46 restrict off-road
vehicle use in certain areas and on high pollution advisory days, and
prescribe outreach to off-road vehicle purchasers to inform them of
methods for reducing generation of dust. See ARS 9-500.27, ARS 49-
457.03, ARS 49-457.04, and 189(d) plan, pp. 6-53, 6-71 and 6-190.
Measure 31 restricts vehicle use and parking on unpaved or
unstabilized vacant lots. See ARS 9-500.04, ARS 49-474.01 and 189(d)
plan, p. 6-141.
Leaf Blowers
The 189(d) plan seeks to reduce PM-10 emissions from the operation
of leaf blowers. Measures 18 and 45 restrict the use
of leaf blowers on high pollution advisory days or on unstabilized
surfaces. Measure 21 involves the banning of leaf blowers from
blowing landscape debris into public roadways. Measure 22
requires outreach to buyers and sellers of leaf blowing equipment to
inform them of safe and efficient use, methods for reducing generation
of dust, and dust control ordinances and restrictions. See ARS 9-
500.04, ARS 11-877, ARS 49-457.01 and 189(d) plan, pp. 6-50, 6-69, 6-70
and 6-189.
Unpaved Areas
The 189(d) plan contains several measures that seek to reduce PM-10
emissions by reducing the number of unpaved or unstabilized areas.
Measures 25, 26, and 28 direct cities and
towns to pave or stabilize parking lots, dirt roads, alleys, and
shoulders. Measure 33 allows counties the ability to assess
fines to recover the cost of stabilizing lots. See ARS 9-500.04, ARS
49-474.01, ARS 28-6705 and 189(d) plan, pp. 6-86, 6-103, 6-124, and 6-
169.
Burning
Several measures are designed to regulate burning activities.
Measure 35 bans the use of outdoor fireplaces in the
hospitality industry on ``no burn'' days. Measure 47 bans open
burning during the ozone season. See ARS 49-501 and 189(d) plan, pp. 6-
174 and 6-190.
3. Measure Proposed for Limited Approval/Disapproval
Measure 50 is included in the 189(d) plan as a contingency
measure and is designed to achieve emission reductions
[[Page 54812]]
from agricultural sources of PM-10. 189(d) plan, pp. 6-191 and 8-73.
Measure 50 is implemented through SB 1552 which amended ARS
49-457 and requires in section 20 that the best management practices
(BMP) committee for regulated agricultural activities adopt revised
rules. These rules, AAC R18-2-610 and R18-2-611, were revised pursuant
to amended ARS 49-457 and submitted with the 189(d) plan. 189(d) plan,
chapter 10, ``Commitments for Implementation,'' volume two. See also
189(d) plan, Measure 41, p. 6-185. On May 6, 2010, Arizona
again submitted the revised versions of AAC R18-2-610 and R18-2-611
with additional documentation and the ``Agricultural Best Management
Practices Guidance Booklet and Pocket Guide'' (Handbook). Letter from
Benjamin Grumbles, ADEQ, to Jared Blumenfeld, EPA, with enclosures, May
6, 2010. The Handbook provides regulated sources with guidance on how
to implement BMPs and provides information to the public and farm
organizations about AAC R18-2-610 and R18-2-611 (Handbook, p. 5).
We describe the history of agricultural PM-10 controls in the
Maricopa area and we evaluate amended ARS 49-457 and revised AAC R18-2-
610 and R18-2-611 below.
a. History
The analysis done for the ``Plan for Attainment of the 24-hour PM-
10 Standard--Maricopa County PM-10 Nonattainment Area,'' May 1997--
(Microscale Plan)--revealed the contribution agricultural sources make
to exceedances of the 24-hour PM-10 standard in the Maricopa area. See
Microscale plan, pp. 18-19. In order to develop adequate controls for
this source category, Arizona passed legislation, the original version
of ARS 49-457, in 1997 establishing the agricultural BMP committee and
directing the committee to adopt by rule by June 10, 2000, an
agricultural general permit specifying best management practices for
reducing PM-10 from agricultural activities. The legislation also
required that implementation of the agricultural controls begin by June
10, 2000, with an education program and full compliance with the rule
to be achieved by December 31, 2001.
In September 1998, the State submitted ARS 49-457 and on June 29,
1999 we approved the statute as meeting the reasonably available
control measure (RACM) requirements of the CAA.\13\ 64 FR 34726.
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\13\ Prior to its classification as serious, the Maricopa area,
as a moderate PM-10 nonattainment area, was required to implement
RACM pursuant to CAA section 189(a)(1)(C).
---------------------------------------------------------------------------
After a series of meetings during 1999 and 2000, the agricultural
BMP committee in 2000 adopted the original versions of AAC R18-2-610,
``Definitions for R18-2-611,'' and AAC R18-2-611, ``Agricultural PM-10
General Permit; Maricopa PM10 Nonattainment Area'' (collectively,
general permit rule). 66 FR 34598. The BMPs are defined in AAC R18-2-
610. AAC R18-2-611 groups the BMPs into three categories (tilling and
harvest, noncropland, and cropland). The original version of AAC R18-2-
611 required that commercial farmers select one practice from each of
these categories. AAC R18-2-611 also requires that commercial farmers
maintain records demonstrating compliance with the general permit rule.
In July 2000, the State submitted the general permit rule. The
State also submitted an analysis quantifying the emission reductions
expected from the rule and the demonstration that the rule meets the
CAA's RACM, BACM and MSM requirements. We approved the general permit
rule as meeting the RACM requirement in CAA section 189(a)(1)(C) on
October 11, 2001. 66 FR 51869. We approved the general permit rule as
meeting the requirements for BACM and MSM in CAA sections 189(b)(1)(B)
and 188(e) on July 25, 2002. 67 FR 48718.
b. Amendments to ARS 49-457 and Revisions to the General Permit Rule
SB 1552 amended ARS 49-457 to increase the number of required BMPs
from one to two in the general permit rule by December 31, 2007. SB
1552 also expanded the scope of the applicability of the general permit
rule by amending the definition of regulated area to include any
portion of Area A \14\ that is located in a county with a population of
two million or more persons.
---------------------------------------------------------------------------
\14\ Area A is defined in ARS 49-541. The 189(d) plan does not
take any credit for emission reductions from the general permit
rule's expansion to Area A because it extends beyond the boundaries
of the Maricopa area. 189(d) plan, p. 8-73. ARS 49-451 was not
submitted for inclusion into the SIP. While not a basis for our
proposed action here, we recommend that ADEQ either insert the
definition from ARS 49-451 into the general permit rule or submit
ARS 49-451 to EPA.
---------------------------------------------------------------------------
The agricultural BMP committee added definitions for the following
terms to AAC R18-2-610: ``Area A,'' ``cessation of night tilling,''
``forage crop,'' ``genetically modified,'' ``genetically modified
organism,'' ``global position satellite system,'' ``green chop,''
``high pollution advisory,'' ``integrated pest management,'' ``night
tilling,'' ``organic farming practices,'' ``precision farming,'' and
``transgenic crops.'' The definitions for ``commercial farm'' and
``regulated agricultural activity'' were amended to include Area A.
The agricultural BMP committee also amended AAC R18-2-611. Section
C of AAC R18-2-611 was amended to require commercial farmers to
implement two BMPs each from the categories of tillage and harvest,
noncropland, and cropland. The following additional BMPs were added to
the tillage and harvest category in Section E of AAC R18-2-611: Green
chop, integrated pest management, cessation of night tilling, precision
farming, and transgenic crops. The cropland category in Section G was
augmented with the following additional options: Integrated pest
management and precision farming.
c. Evaluation of Amendments to ARS 49-457 and Revisions to the General
Permit Rule
As stated above, in reviewing a statute, regulation, or rule for
SIP approval, EPA looks to ensure that the provision is enforceable as
required by CAA section 110(a), is consistent with all applicable EPA
guidance, and does not relax existing SIP requirements as required by
CAA sections 110(l) and 193. ARS 49-457 and the general permit rule
generally meet the applicable requirements and guidance. We are
proposing to approve amended ARS 49-457 because it strengthens the SIP
by requiring an increase in the number of required BMPs and expanding
the geographical scope of the agricultural BMP program. With regard to
the general permit rule, we are proposing a limited approval and
limited disapproval and we discuss the bases for that proposal below.
As stated above, we approved the general permit rule as meeting the
CAA requirements for BACM in 2002. Since then, several air pollution
control agencies in California, including the San Joaquin Valley
Unified Air Pollution Control District (SJVAPCD) and the Imperial
County Air Pollution Control District (ICAPCD), have adopted analogous
rules for controlling PM-10 emissions from agricultural sources. The
relevant State and local rules in Arizona, California and Nevada are
summarized in our recent action on ICAPCD's Rule 806. 75 FR 39366,
39383 (July 8, 2010).
Since the adoption of controls for agricultural sources in the
Maricopa area, other State and local agencies which have adopted such
controls, as well as EPA, have acquired additional expertise about how
to control
[[Page 54813]]
emissions from these sources and implement regulations for them. As a
result, we no longer believe that the requirements in the general
permit rule that we approved in 2002 for the Maricopa area fully meet
CAA requirements.
AAC R18-2-611 Sections E, F and G list BMPs intended to control
emissions from tillage and harvest, noncropland and cropland, and the
BMPs on these lists are defined in AAC R18-2-610. However, as discussed
below, the definitions in AAC R18-2-610 are overly broad. Moreover,
there is no mechanism in the rule to provide sufficient specificity to
ensure a BACM level of control.\15\
---------------------------------------------------------------------------
\15\ For example, SJVAPCD's Rule 4550 has an application
submittal and approval process. Great Basin Unified Air Pollution
Control District's (GBUAPCD) Rule 502 has a similar application
submittal and approval process. SJVAPCD's and GBUAPCD's application
forms require sources to select conservation management practices
(CMPs), the analogue to Arizona's BMPs, and to describe the
specifics of the practices chosen. Such an application submittal and
approval process provides a mechanism to ensure that controls are
implemented at a BACM level.
---------------------------------------------------------------------------
As an example of the breadth of the BMPs, one of the BMPs in AAC
R18-2-611 Section E, the tillage and harvest category, is ``equipment
modification.'' This term is defined in AAC R18-2-610 Section 18 as
``modifying agricultural equipment to prevent or reduce particulate
matter generation from cropland.'' The types of equipment modification
are not specified in the rule, and according to the Handbook, examples
of this practice include using shields to redirect the fan exhaust of
the equipment or using spray bars that emit a mist to knock down PM-10.
Handbook, p. 10. Because most of the PM-10 generated during active
agricultural operations is due to disturbance from parts of
agricultural equipment that come into direct contact with the soil, we
expect that using appropriately designed spray bars would be far more
effective at reducing PM-10 than redirecting a machine's fan exhaust.
However, there is no provision in the general permit rule that requires
a source or regulatory agency to evaluate whether the more effective
version of this BMP is economically and technologically feasible.
Moreover, while AAC R18-2-611 Section I requires that a farmer record
that he has selected the ``equipment modification'' BMP, it does not
require the farmer to record what type of equipment modification he
will be implementing. Hence, neither ADEQ nor the public can verify
whether what is being implemented is a best available control measure.
An example from AAC R18-2-611 Section F, the category for
noncropland, is the ``watering'' BMP. AAC R18-2-610 Section 52 defines
watering as ``applying water to noncropland.'' The level of control
achieved would depend on the amount of water that was applied, the
frequency with which it was applied, as well as the size and conditions
of the area to which it was applied. However, the rule does not specify
the frequency or amount of water application or otherwise ensure that
watering under this measure is effective. Moreover, the definition for
``noncropland'' in Section 31 of AAC R18-2-611 states that it
``includes a private farm road, ditch, ditch bank, equipment yard,
storage yard, or well head.'' It is not clear which of these areas a
farmer would need to control upon selecting the ``watering'' BMP. As
written, the rule allows regulated sources to implement the
``watering'' BMP in a manner that may not be as effective as best
available controls. Furthermore, while AAC R18-2-611 Section I requires
that a farmer record that he has selected the ``watering'' BMP, it does
not require the farmer to record how he will be implementing this BMP.
Hence, neither ADEQ nor the public can verify whether the BMP that is
being implemented is in fact a best available control measure.
An example from AAC R18-2-611 Section G, the category for cropland,
is the ``artificial wind barrier'' BMP. AAC R18-2-610 Section 4 defines
``artificial wind barrier'' as ``a physical barrier to the wind.'' The
control effectiveness of the barrier will depend on what the barrier is
constructed of, the size of the barrier, as well as the placement of
the barrier. In fact, the Handbook suggests that certain materials
(e.g., board fences, burlap fences, crate walls, and bales of hay) be
used, notes that the distance of 10 times the barrier height is
considered the protected area downwind of a barrier, and states that
the barrier should be aligned across the prevailing wind direction.
Handbook, p. 20. However, the general permit rule does not specify any
parameters that need to be met for the implementation of the
``artificial wind barrier'' BMP. Hence a source can construct a barrier
that is not a best available control and still be in compliance with
the general permit rule.
The absence of sufficiently defined requirements makes it difficult
for regulated parties to understand and ensure compliance with the
requirements, and makes it difficult for ADEQ or others to verify
compliance with the general permit rule. The general permit rule needs
to be revised to ensure that the BMPs are enforceable as required by
CAA section 110(a) and are implemented at a BACM level as required by
section 189(b)(1)(B).
4. Summary of Proposed Action on Measures in 189(d) Plan
EPA believes the statutory provisions associated with the 189(d)
plan measures in table 4 in section III.B.2 above are consistent with
the relevant policy and guidance regarding enforceability and SIP
relaxations. Therefore, we are proposing to fully approve under CAA
section 110(k)(3) the following Arizona statutory provisions, as
submitted with the 189(d) plan:
ARS 9-500.04
ARS 9-500.27
ARS 11-877
ARS 28-6705
ARS 49-457
ARS 49-457.01
ARS 49-457.02
ARS 49-457.03
ARS 49-457.04
ARS 49-474.01
ARS 49-474.05
ARS 49-501
EPA is also proposing pursuant to CAA section 110(k)(3) to approve
the ``Agricultural Best Management Practices Guidance Booklet and
Pocket Guide'' as submitted on May 6, 2010.
EPA is also proposing pursuant to CAA section 110(k)(3) a limited
approval and limited disapproval of AAC R18-2-610 and AAC R18-2-611, as
submitted in the 189(d) plan. We are proposing a limited approval
because AAC R18-2-610 and AAC R18-2-611 strengthen the SIP. We are
proposing a limited disapproval because the general permit rule does
not meet the enforceability requirements of CAA section 110(a) and no
longer ensures that controls for agricultural sources in the Maricopa
area are implemented at a BACM level as required by section
189(b)(1)(B).
C. Attainment Demonstration
CAA section 189(d) requires the submittal of plan revisions that
provide for expeditious attainment of the PM-10 NAAQS. The attainment
deadline applicable to an area that misses the serious area attainment
date is as soon as practicable, but no later than five years from the
publication date of the notice of a nonattainment finding unless
extended by EPA as meeting certain specified requirements. CAA section
179(d)(3). Because, as stated previously, EPA published the
nonattainment finding for the Maricopa area on June 6, 2007 (72 FR
31183), the attainment deadline for the area is as expeditiously
[[Page 54814]]
as practicable but no later than June 6, 2012.
The 189(d) plan projects through a modeled attainment demonstration
that the Maricopa area will attain the PM-10 standard by December 31,
2010. 189(d) plan, chapter 8. According to the plan, modeling was
conducted for the two areas, the Salt River area and the Higley
monitor, that have the mix and density of sources that caused the
highest 24-hour PM-10 monitor readings in the Maricopa area from 2004
through 2006. The Salt River area includes the three monitors (West
43rd Avenue, Durango Complex and Bethune Elementary) that recorded
violations during those years. The Higley monitor did not violate the
PM-10 standard for that period but had one exceedance in 2004 and one
in 2006 and the surrounding area has a different mix of sources than
the Salt River area. The plan also provides a modeled attainment
demonstration for the remainder of the nonattainment area. AERMOD was
used for the attainment demonstration for the Salt River area.
Attainment for the Higley monitor area and the remainder of the
nonattainment area was shown using a proportional rollback approach.
AERMOD is an EPA-approved model and was appropriately used in the
189(d) plan. The proportional rollback approach was also appropriate
because of the lack of good models for PM-10 on large geographic
scales. However, EPA cannot approve an attainment demonstration for PM-
10 nonattainment areas based on modeled projections of attainment if
actual ambient air quality monitoring data show that the area cannot
attain by the projected date. Under 40 CFR 50.6(a), the 24-hour PM-10
standard is attained when the expected number of exceedances per year
at each monitoring site is less than or equal to one. The number of
expected exceedances at a site is determined by recording the number of
exceedances in each calendar year and then averaging them over the past
3 calendar years. 40 CFR part 50, appendix K. Thus, in order for the
Maricopa area to attain the standard by December 31, 2010, there can be
no more than one exceedance at any one monitor in the nonattainment
area in calendar years 2008, 2009 and 2010.
There were 11 recorded exceedances of the PM-10 standard in 2008 in
the Maricopa area. Five of these exceedances were recorded at the West
43rd Avenue monitor, two at the Durango Complex monitor, two at the
South Phoenix monitor, and two at the Coyote Lakes monitor. In 2009,
there were 22 exceedances recorded in the Maricopa Area. Seven of these
exceedances were recorded at the West 43rd Avenue monitor, three at the
Durango Complex monitor, three at the South Phoenix monitor, two at the
Higley monitor, two at the West Chandler monitor, one at the West
Phoenix monitor, one at the Glendale monitor, one at Greenwood monitor,
one at the Dysart monitor, and one at the Bethune Elementary School
monitor.\16\
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\16\ ``USEPA Quick Look Report for Maricopa County (01/01/2008-
12/31/2010) Air Quality System database, run date: August 26, 2010''
(AQS 2008-2010 Quick Look Report). The Air Quality System Identifier
numbers for the monitors referenced in this section are as follows:
West 43rd Avenue (04-013-4009), Durango Complex (04-013-9812), South
Phoenix (04-013-4003), Coyote Lakes (04-013-4014), Higley (04-013-
4006), West Chandler (04-013-4004), West Phoenix (04-013-0019),
Glendale (04-013-2001), Greenwood (04-013-3010), Dysart (04-013-
4010), Bethune Elementary School (04-013-8006).
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Of the eleven 2008 exceedances, ten were flagged by the State as
due to exceptional events under EPA's Exceptional Events Rule (EER)
\17\ which allows the Agency to exclude air quality monitoring data
from regulatory determinations related to exceedances or violations of
the NAAQS if the requirements of the EER are met. All of the 2009
exceedances were flagged as exceptional events under the EER.\18\
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\17\ See ``Treatment of Data Influenced by Exceptional Events,''
72 FR 13560 (March 22, 2007). The EER is codified at 40 CFR 50.1 and
50.14. For the state flagging requirements, see 40 CFR 50.14(c)(2).
\18\ AQS 2008-2010 Quick Look Report.
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Under the EER, EPA may exclude monitored exceedances of the NAAQS
from regulatory determinations if a state adequately demonstrates that
an exceptional event caused the exceedances. 40 CFR 50.14(a). Before
EPA will exclude data from these regulatory determinations, the state
must flag the data in EPA's Air Quality System (AQS) database and,
after notice and an opportunity for public comment, submit a
demonstration to justify the exclusion. After considering the weight of
evidence provided in the demonstration, EPA will decide whether or not
to concur on each flag.
EPA has evaluated four of the 2008 exceedances recorded at the West
43rd Avenue monitor in south-central Phoenix that the State claims to
be due to exceptional events.\19\ The exceedances were recorded on
March 14, April 30, May 21, and June 4. On May 21, 2010 EPA determined
that the events do not meet the requirements of the EER and therefore
do not qualify as exceptional events for regulatory purposes. Letter
from Jared Blumenfeld, EPA, to Benjamin H. Grumbles, ADEQ, re:
PM10 National Ambient Air Quality Standard in Phoenix;
Request for Concurrence for Treatment as ``Exceptional Events,'' May
21, 2010, with enclosures. As a result, EPA is not excluding the
exceedances recorded on these dates from regulatory determinations
regarding NAAQS exceedances in the Maricopa area.
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