Approval and Promulgation of Implementation Plans-Maricopa County PM-10 Nonattainment Area; Five Percent Plan for Attainment of the 24-Hour PM-10 Standard, 33107-33116 [2014-13495]
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• does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the Commonwealth, and EPA
notes that it will not impose substantial
direct costs on tribal governments or
preempt tribal law.
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by August 11, 2014. Filing a
petition for reconsideration by the
Administrator of this final rule does not
affect the finality of this action for the
purposes of judicial review nor does it
extend the time within which a petition
for judicial review may be filed, and
shall not postpone the effectiveness of
such rule or action. This action may not
be challenged later in proceedings to
enforce its requirements. See section
307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 29, 2014.
Heather McTeer Toney,
Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
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Authority: 42 U.S.C. 7401 et seq.
Subpart S—Kentucky
2. Section 52.920(c) Table 2 is
amended under ‘‘Reg 1—General
Provisions’’ by revising the entry for
‘‘1.07’’ to read as follows:
■
§ 52.920—Identification
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of plan.
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TABLE 2—EPA-APPROVED JEFFERSON COUNTY REGULATIONS FOR KENTUCKY
Reg
EPA Approval
date
Title/Subject
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District
effective
date
Federal Register notice
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Explanation
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Reg 1—General Provisions
1.07 .............
Excess Emissions During Startups, Shutdowns,
and Upset Conditions.
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BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
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[EPA–R09–OAR–2013–0762; FRL–9912–01–
Region 9]
Approval and Promulgation of
Implementation Plans—Maricopa
County PM–10 Nonattainment Area;
Five Percent Plan for Attainment of the
24-Hour PM–10 Standard
Environmental Protection
Agency (EPA).
AGENCY:
Final rule.
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[Insert citation of publication].
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The Environmental Protection
Agency (EPA) is approving a State
implementation plan (SIP) revision
submitted by the State of Arizona to
meet Clean Air Act (CAA) requirements
applicable to the Maricopa County
(Phoenix) PM–10 Nonattainment Area.
The Maricopa County PM–10
Nonattainment Area is designated as a
serious nonattainment area for the
national ambient air quality standards
(NAAQS) for particulate matter of ten
microns or less (PM–10). The submitted
SIP revision consists of the Maricopa
Association of Governments 2012 Five
Percent Plan for PM–10 for the Maricopa
County Nonattainment Area and the
2012 Five Percent Plan for the Pinal
County Township 1 North, Range 8 East
Nonattainment Area’’ (collectively, the
2012 Five Percent Plan). EPA is
approving the 2012 Five Percent Plan as
SUMMARY:
[FR Doc. 2014–13429 Filed 6–9–14; 8:45 am]
ACTION:
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meeting all relevant statutory and
regulatory requirements.
DATES: This rule is effective on July 10,
2014.
ADDRESSES: You may inspect the
supporting information for this action,
identified by docket number EPA–R09–
OAR–2013–0762, by one of the
following methods:
1. Federal eRulemaking portal,
https://www.regulations.gov, please
follow the online instructions; or,
2. Visit our regional office at, U.S.
Environmental Protection Agency
Region IX, 75 Hawthorne Street, San
Francisco, CA 94105–3901.
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
documents in the docket are listed in
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the index, some information may be
publicly available only at the hard copy
location (e.g., voluminous records, large
maps, copyrighted material), and some
may not be publicly available in either
location (e.g., Confidential Business
Information). To inspect the hard copy
materials, please schedule an
appointment during normal business
hours with the contact listed directly
below.
FOR FURTHER INFORMATION CONTACT:
Doris Lo, EPA Region IX, (415) 972–
3959, lo.doris@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, ‘‘we,’’ ‘‘us’’
and ‘‘our’’ refer to EPA.
Table of Contents
I. Summary of Proposed Action
II. Public Comments and EPA Responses
III. EPA’s Final Action
IV. Statutory and Executive Order Reviews
I. Summary of Proposed Action
On February 6, 2014 (79 FR 7118),
EPA proposed to approve the 2012 Five
Percent Plan,1 which the State of
Arizona submitted on May 25, 2012, as
meeting all relevant statutory and
regulatory requirements under the Clean
Air Act (CAA). As discussed in our
proposed rule, the Maricopa County
(Phoenix) PM–10 nonattainment area is
a serious PM–10 nonattainment area,
and is located in the eastern portion of
Maricopa County and encompasses the
cities of Phoenix, Mesa, Scottsdale,
Tempe, Chandler, Glendale, several
other smaller jurisdictions,
unincorporated County lands, as well as
the town of Apache Junction in Pinal
County. Arizona’s obligation to submit
the 2012 Five Percent Plan was triggered
by EPA’s June 6, 2007 finding that the
Maricopa PM–10 Nonattainment Area
had failed to meet its December 31, 2006
deadline to attain the PM–10 NAAQS.
The CAA requires a serious PM–10
nonattainment area that fails to meet its
attainment deadline to submit a plan
providing for 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
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1 The
2012 Five Percent Plan includes the ‘‘MAG
2012 Five Percent Plan for PM–10 for the Maricopa
County Nonattainment Area’’ (dated May 2012)
(MAG 2012 Five Percent Plan) and the ‘‘2012 Five
Percent Plan for the Pinal County Township 1
North, Range 8 East Nonattainment Area’’ (dated
May 25, 2012) (Pinal 2012 Five Percent Plan)
(collectively, the 2012 Five Percent Plan). In our
proposed rule we cited primarily to the MAG 2012
Five Percent Plan; however, both plans were
submitted by ADEQ on May 25, 2012 and are
included in the docket for this rulemaking. See May
25, 2012 letters from Henry R. Darwin, Director,
Arizona Department of Environmental Quality, to
Jared Blumenfeld, Regional Administrator, U.S.
Environmental Protection Agency Region IX.
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until attainment. Our February 6, 2014
proposed rule provides the background
and rationale for this action.2
II. Public Comments and EPA
Responses
EPA provided a 30-day public
comment period on our proposed
action. The comment period ended on
March 10, 2014. We received 12 public
comment letters from State and local
agencies, industry, congressional
representatives and environmental
groups.3 All of the submitted comment
letters are in our docket. We respond to
all the comments below.
A. Update 2002 BACM and MSM
Determinations
Comment: The Arizona Center for
Law in the Public Interest (ACLPI)
commented that EPA’s proposed action
did not discuss or analyze requirements
under CAA 189(b)(1)(B) for best
available control measures (BACM) or
requirements under CAA 188(e) for
most stringent measures (MSM). ACLPI
stated that these requirements apply to
the Maricopa County PM–10
nonattainment area because it is a
serious PM–10 nonattainment area that
obtained a five-year extension of its
attainment date pursuant to section
188(e) in 2001. ACLPI also asserts that
EPA’s 2002 approval of BACM and
MSM requirements must be updated in
light of EPA’s statements in
correspondence to ADEQ and in a
proposed rulemaking in 2010 that new
more stringent control measures have
been adopted by air agencies in Nevada
and California and that agricultural
controls no longer represent BACM.
ACLPI also states that addressing the
question of whether existing control
constitute BACM is necessary in order
to evaluate ADEQ’s claims that 135
exceedances qualify as exceptional
events.
Response: EPA disagrees with the
commenter’s statement that EPA’s
proposed action on the 2012 Five
Percent Plan did not discuss or analyze
section 189(b)(1)(B) and 188(e)
2 We have also approved Arizona statutory
provisions and the Dust Action General Permit,
which were submitted with the 2012 Five Percent
Plan. See our proposed rule at 79 FR 7118, p. 7123
(footnote 20) and recent EPA actions at 79 FR 17878
(March 31, 2014), 79 FR 17879 (March 31, 2014)
and 79 FR 17881 (March 31, 2014).
3 Commenting organizations include: U.S. Senator
Jeff Flake, Arizona Center for Law in the Public
Interest (2 letters), Maricopa Association of
Governments, City of Phoenix, Arizona Rock
Products Association, Salt River Project, ADEQ,
Arizona Association of General Contractors,
Maricopa County Air Quality Department, the
Arizona Chamber of Commerce, and Amanda
Reeve, former Arizona State Representative and
Chair of Arizona House Environment Committee.
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requirements for BACM and MSM. Our
proposed action on the 2012 Five
Percent Plan explained that the
Maricopa County PM–10 nonattainment
area was initially classified as moderate,
and, when it failed to reach attainment
by the attainment deadline for moderate
areas, was reclassified, on May 10, 1996,
as a serious PM–10 nonattainment area
with a new attainment deadline of
December 31, 2001. See 79 FR 7118–
7119. Our proposed action on the 2012
Five Percent Plan also explained the
criteria set forth in section 188(e)
necessary to grant a five year extension
of that deadline. In addition, our
proposed action on the 2012 Five
Percent Plan included the following
statement: ‘‘On July 25, 2002, EPA
approved the serious area PM–10 plan
for the Maricopa PM–10 Nonattainment
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 approved the
submission with respect to the
requirements of section 188(d) and
granted Arizona’s request to extend the
attainment date of the area to December
31, 2006.’’ 4 79 FR 7119.
We understand the comment to be
more specifically directed at the issue of
whether our action on the 2012 Five
Percent Plan requires EPA to ‘‘update’’
or re-evaluate the BACM and MSM
determinations we made when we acted
on the State’s serious area plan and
attainment deadline extension request
in 2002. EPA does not agree that the
CAA requires such a reevaluation in the
context of acting on a state’s submission
of a new plan to meet the requirements
of section 189(d). We interpret CAA
section 189(b)(1)(B) to provide that the
requirement for BACM is triggered by a
specific event: The reclassification of a
moderate PM–10 nonattainment area to
serious. Similarly, we interpret section
CAA 188(e) to provide that the
requirement for MSM is triggered by a
particular event: EPA’s granting of a
state’s request for an extension of the
attainment deadline for a serious
nonattainment area. If a serious
nonattainment area fails to reach
attainment by the applicable deadline,
CAA section 189(d) requires the state to
submit ‘‘plan revisions which provide
for attainment of the PM–10 air quality
standard’’ and ‘‘for annual reduction in
PM–10 . . . of not less than
4 EPA’s approval of BACM for this area and
approval of the extension under section 188(e) were
upheld in Vigil v. Leavitt, 366 F.3d 1025, amended
at 381 F.3d 826 (9th Cir. 2004).
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5 percent . . .’’ The Act, however, does
not contain a specific requirement that
the state update the previously
approved requirements for BACM and
MSM as a consequence of failing to
reach attainment by the applicable
deadline for serious PM–10
nonattainment areas as an element of
the plan revision required by section
189(d).
Consistent with the Act’s structure of
requiring increasingly stringent
obligations as the severity of the air
pollution problem increases, we
interpret sections 189(b)(1)(B) and
188(e), as well as 189(d), as parts of a
statutory scheme that imposes
increasingly more stringent
requirements when a PM–10
nonattainment area fails to reach
attainment by applicable deadlines. See
Addendum to the General Preamble, 59
FR 42010 (August 16, 1994). As stated
previously, the Maricopa County PM–10
Nonattainment Area was initially
classified as moderate. In 1996, when
EPA determined that the Area failed to
reach attainment by the moderate area
attainment deadline, EPA reclassified
the Area to serious. As a consequence of
this reclassification, the Maricopa
County PM–10 Nonattainment Area was
subject to a new attainment deadline
(December 31, 2001) as well as new
requirements for a serious PM–10
attainment plan pursuant to CAA
section 188(c) and for BACM pursuant
to CAA section 189(b)(1)(B).
Subsequently, the State’s request for an
extension of the serious area attainment
deadline (December 31, 2006), and
EPA’s granting of that request in 2002,
resulted in an obligation for the State to
demonstrate that its SIP imposed MSM
pursuant to section 188(e). In 2007,
EPA’s determination that the Maricopa
County PM–10 Nonattainment Area had
failed to reach attainment by the
extended serious area deadline resulted
in section 189(d)’s requirements for plan
revisions and annual reductions in PM–
10 of five percent until attainment.
Thus, the CAA’s requirements for
BACM and MSM are tied to specific
triggers in the Act: BACM by the
reclassification to serious following the
missed moderate area deadline, and
MSM by the extension of the serious
area deadline. For serious
nonattainment areas that fail to reach
attainment by an applicable deadline,
the CAA specifies a particular
consequence: A requirement for
additional plan revisions that provide
for attainment and annual five percent
reductions. There is no explicit
requirement in section 189(d) that a
state with a serious nonattainment area
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that misses its attainment deadline must
also reevaluate BACM and MSM
provisions in its SIP that EPA has
already approved. Indeed, the
requirements of section 189(d) do not
specify the requisite level of control and
merely speak in terms of expeditious
attainment and a set percentage of
annual reductions from the most recent
inventory, without regard to the level of
control on sources needed to achieve
those objectives. We note further that
the commenter did not provide a legal
rationale to support an interpretation of
the Act that would require the state to
reevaluate the existing BACM and MSM
in its SIP as part of the explicit
requirements of section 189(d). A state
may elect to do so, and may elect to do
so as a means of achieving additional
emissions reductions to meet the five
percent requirement, but that is not a
specific requirement of section 189(d).
EPA notes that it has other
discretionary authority under the CAA
to address deficiencies in existing state
SIPs, if that were necessary to address
substantive concerns like those raised
by the commenter. If EPA were to find
a state SIP to be ‘‘substantially
inadequate’’ to attain or maintain a
standard or to meet any other
requirements of the CAA, section
110(k)(5) provides a remedy by which
EPA may require a state to revise its SIP
to correct the identified inadequacies. In
such a situation, EPA notifies a state of
the inadequacies and can allow the state
up to 18 months to submit revisions to
the SIP to address the problems. See 42
U.S.C. 7410(k)(5). EPA has not made
such a determination with respect to
BACM or MSM for the Maricopa County
PM–10 Nonattainment Area.
Finally, we note that Arizona was able
to demonstrate attainment of the PM–10
NAAQS and provide for annual
reductions of five percent until
attainment without requiring additional
BACM and MSM measures in its SIP.5
Given that this area has demonstrated
that it attained the PM–10 NAAQS by
December 31, 2012 and has met the
requirements of section 189(d), EPA
does not see a need for the State to
reevaluate its existing BACM and MSM
as part of the action on the 2012 Five
Percent Plan.
We address ACLPI’s comments with
respect to BACM and MSM as they
relate specifically to agricultural
controls and exceptional events below.
5 See MAG 2012 Five Percent Plan, at p. 5–7,
Table 5–3. Note that the emissions from agricultural
sources (‘‘tilling, harvesting and cotton ginning’’
and ‘‘windblown agriculture’’) are constant,
reflecting no reductions in emissions from 2008 to
2012.
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B. BACM for Agricultural Sources
Comment: ACLPI commented that
EPA should not approve the 2012 Five
Percent Plan because it does not include
adequate measures for agricultural
emissions. ACLPI commented that EPA
has stated that ACC R 18–2–611 [Ag
BMP Rule] no longer qualifies as BACM
because other nonattainment areas have
stronger programs for controlling
agricultural emissions and do not have
an enforceability issue found in the rule.
ACLPI also commented that the State’s
2011 revisions to the Ag BMP Rule to
address concerns identified by EPA are
still clearly insufficient to qualify as
BACM.
Response: As explained above, CAA
section 189(d) does not require the State
to reevaluate the BACM and MSM
determinations that were addressed in
its serious area PM–10 plan for the
Maricopa County PM–10 Nonattainment
Area.
In addition, the 2012 Five Percent
Plan satisfied all requirements for an
approvable section 189(d) plan without
relying on additional emissions
reductions from agricultural sources.
The 2012 Five Percent Plan is based on
the ‘‘2008 PM–10 Periodic Emissions
Inventory for Maricopa County, Revised
2011 (2008 Inventory),’’ which EPA
found to be comprehensive, accurate
and current. 79 FR 7120–7121. The 2008
Inventory shows that the most
significant sources of emissions in the
Maricopa County Nonattainment Area
are unpaved roads and alleys (21
percent), construction-related fugitive
dust (17 percent), paved road dust (17
percent) and windblown dust (9
percent). 79 FR 7120. Section 189(d)
requires an approvable plan to show
annual five percent reductions in PM–
10 or PM–10 precursors until
attainment. The 2012 Five Percent Plan
was able to satisfy this criterion without
assuming additional reductions in
agricultural emissions.6 Similarly, the
2012 Five Percent Plan demonstrated
that the area would attain the standard
without additional reductions in
agricultural emissions.7 Instead, the
2012 Five Percent Plan predicts that
decreases in emissions from other
categories, primarily construction and
windblown dust from vacant and open
lands, would achieve the requisite 5
percent reductions.8
Recent monitoring data support the
attainment demonstration in the 2012
6 Id.
7 See MAG 2012 Five Percent Plan, App. B,
‘‘Technical Document in Support of the MAG 2012
Five Percent Plan for PM–10 for the Maricopa
County Nonattainment Area,’’ p. V–65.
8 Id. at p. III–2, Table III–1.
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Five Percent Plan. 79 FR 7122. Finally,
the State used no reductions in
agricultural emissions for contingency
measures.9 Because the 2012 Five
Percent Plan did not depend on
additional emission reductions from
agricultural sources and because EPA
finds that the State is not required to
reevaluate the BACM determinations we
made in 2002 as part of meeting the
requirements of section 189(d), the
content of the Ag BMP rule does not
determine the outcome of our action on
the 2012 Five Percent Plan.
Nevertheless, EPA is continuing to
work with ADEQ, Arizona stakeholders
and the Governor’s Agricultural BMP
Committee to improve the Ag BMP rule.
EPA anticipates that these
improvements will be particularly
important for addressing PM–10
emissions in Pinal County, a portion of
which EPA re-designated as nonattainment in 2012. See 77 FR 32024
(May 31, 2012).
C. Dust Action General Permit
Comment: ACLPI commented that the
2012 Five Percent Plan relies on an
estimate that the Dust Action General
Permit (DAGP) will increase the rule
effectiveness of Rule 310.01 by one
percent, but argued that it is not clear
that the DAGP achieves any measurable
reduction in emissions. ACLPI stated
that the structure of the DAGP means
that its scope is unclear and that there
is no way to gauge that issuance of the
DAGP is actually impacting behavior in
a way that reduces emissions. ACLPI
stated that compliance is only measured
by instances of lack of compliance
discovered by inspectors who happen
upon an owner or operator of a
regulated activity who is not
implementing a BMP. ACLPI stated that
ADEQ has not yet issued a single
Requirement to Operate (‘‘RTO’’), which
means that it is possible that sources not
already subject to permits have
implemented BMPs as a result of the
permit, but it is equally plausible that
BMPs are not being implemented and
that inspectors haven’t discovered the
violations, or that the universe of
potential permittees under the DAGP
was so small that the adoption of the
permit had no practical effect
whatsoever.
Response: The 2012 Five Percent Plan
does not rely on assumptions regarding
compliance with the DAGP per se;
rather, the 2012 Five Percent Plan relies
on an assumption that the DAGP will
improve compliance with Rule 310.01.
As the 2012 Five Percent Plan explains,
9 See MAG 2012 Five Percent Plan, at p. 6–39,
Table 6–22.
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‘‘[e]missions reduction credit was taken
for one new measure, the Dust Action
General Permit . . . This new measure
is expected to raise rule effectiveness for
Rule 310.01 by one percent during high
wind hours . . .’’ 10 This statement is
consistent with Table 5–1 of the MAG
2012 Five Percent Plan, ‘‘Impact of
Increased Rule Effectiveness on 2008–
2012 PM–10 Emissions,’’ which shows
that ADEQ estimated that the rule
effectiveness for the category
‘‘windblown vacant, open, test tracts,’’
(the category of sources subject to Rule
310.01), would increase from 96% in
2010–2011 to 97% in 2012.11 Table
5–1 associates this improved rate of
compliance with an annual reduction in
PM–10 emissions of 149 tons per year.12
The Maricopa County Air Quality
Department’s (MCAQD) compliance
data for calendar year 2012 support the
2012 Five Percent Plan’s assumptions
that the DAGP will improve compliance
with Rule 310.01. MCAQD reviewed its
records of inspections during calendar
year 2012, as documented in
‘‘Evaluation of Innovative Control
Measures and Existing Maricopa County
Control Measures Contained in the
MAG 2012 Five Percent Plan for PM–10
for the Maricopa County Nonattainment
Area, revised,’’ Maricopa County Air
Quality Department, June 6, 2013 (2013
Evaluation Report).13 It found that, out
of a total of 5,431 sites inspected for
compliance with Rule 310.01 in 2012,
149 citations were issued—amounting
to a rule effectiveness rate of 97.62
percent. 2013 Evaluation Report at
pages 3–4. This amount exceeds the
compliance rate of 96% associated with
previous years. MAG 2012 Five Percent
Plan at p. 5–3, Table 5–1. EPA
acknowledges that estimating rule
compliance requires reliance on
compliance information collected by
reliable means. In this instance, EPA
believes that the information gathered
through the MCAQD’s inspections
program provides information to
support the conclusion that most
affected sources are complying with the
requirements of Rule 310.01, and that
10 MAG 2012 Five Percent Plan, p. ES–10
(emphasis added). See also, MAG 2012 Five Percent
Plan at p. 6–45; App. B, ‘‘Technical Document in
Support of the MAG 2012 Five Percent Plan for
PM–10 for the Maricopa County Nonattainment
Area,’’ ppg. III–1 to III–8.
11 MAG 2012 Five Percent Plan at p. 5–3, Table
5–1.
12 Id.
13 MCAQD has committed to conducting this
evaluation on a triennial basis. MAG 2012 Five
Percent Plan, App. C, Exhibit 2, ‘‘Maricopa County
Resolution to Evaluate Measures in the MAG 2012
Five Percent Plan for the Maricopa County
Nonattainment Area.’’
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compliance improved in 2012 as a result
of those inspections.
The 2012 Five Percent Plan further
describes the connection between Rule
310.01 and the DAGP.14 The Plan
explains that the DAGP is expected to
increase compliance with Rule 310.01
because, whenever ADEQ issues a
forecast of a high wind dust event,
sources subject to Rule 310.01
(primarily open areas, vacant lots, and
unpaved parking areas and roadways),15
will take additional measures to
stabilize open areas and unpaved
surfaces by implementing the best
management practices (BMPs) specified
in Rule 310.01 and the DAGP.16 Such
measures might include restricting
access to open areas and vacant lots, or
by applying dust suppressants and/or
maintaining surface gravel.17 As
specified in the DAGP, sources that fail
to choose or implement a BMP when
ADEQ issues a forecast of a high wind
dust event may trigger applicability of
the DAGP and the additional
requirements it imposes.18 Thus, the
existence of the DAGP enhances
compliance with Rule 310.01 because
sources subject to Rule 310.01 associate
noncompliance with Rule 310.01 with
an adverse consequence—specifically,
the obligation to apply for and comply
with the DAGP. Again, MCAQD’s study
of the compliance rate of Rule 310.01
supports this assumption in the 2012
Five Percent Plan.
D. Exceptional Events—General
Comment: ACLPI stated that it was
unable to reconcile some of the numbers
of exceptional events cited by EPA. The
commenter stated that the subtotals in
EPA’s concurrence letters add up to 131,
but the subtotals in the tables in the
supporting documentation add up to
135. The commenter added that if sites
with double monitors are counted as
only one exceedance, the total number
of exceedances is 127.
Response: EPA acknowledges the
discrepancy between the number of
exceedances in concurrence letters and
the tables in the TSDs. After closely re14 See MAG 2012 Five Percent Plan, p. ES–10; p.
5–3, Table 5–1; p. 6–45. See also MAG 2012 Five
Percent Plan, App. B, ‘‘Technical Document in
Support of the MAG 2012 Five Percent Plan for
PM–10 for the Maricopa County Nonattainment
Area,’’ ppg. III–1 to III–8. The relationship between
Rule 310.01 and the DAGP is also described in
ADEQ’s comments on our proposed action, Letter
from Eric C. Massey, Director, Air Quality Division,
ADEQ to Greg Nudd, US EPA, dated March 10,
2014.
15 See Rule 310.01, section 102; 2012 Five Percent
Plan at ES–7 to ES–10.
16 MAG 2012 Five Percent Plan at ES–10.
17 See DAGP, Attachment C, ‘‘Best Management
Practice Examples’’; Rule 310.01, sections 301–307.
18 DAGP, section V.
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reviewing the data, EPA has determined
that the total number of exceptional
events addressed by our concurrence
letters dated September 6, 2012, May 6,
2013, and July 1, 2013 should be 135
exceedances.19 These 135 exceptional
event exceedances occurred on 25 days
over the three year period, 2010–2012.
Comment: ACLPI commented that
EPA’s exclusion of such a large number
of frequent and severe exceedances is
unconscionable and misrepresents the
extent of the particulate pollution in the
Area. The commenter stated that the
reported exceedances are ‘‘frequent’’
and ‘‘severe’’ within the meaning of
EPA guidance, specifically, EPA’s
Interim Guidance on the Preparation of
Demonstrations in Support of Requests
to Exclude Ambient Air Quality Data
Affected by High Winds Under the
Exceptional Events Rule, May 2013
(Interim Guidance).
Response: We note that the 135
exceptional event exceedances occurred
on 25 days over a three year period from
2010 to 2012. The determinations
reflected in our concurrence letters and
TSDs dated September 6, 2012, May 6,
2013 and July 1, 2013 are consistent
with the EER and our Interim Guidance.
We considered a range of relevant
factors including whether
anthropogenic sources had reasonable
controls in place, meteorological data
such as wind speed and direction, and
the spatial extent of the events. The
frequency and severity of the events
were considered as part of this analysis,
and although we agree that some of the
excluded exceedances could meet the
criteria for ‘‘frequent’’ and ‘‘severe’’
suggested in our Interim Guidance, that
fact alone does not disqualify an
exceedance from consideration as an
exceptional event. See Interim Guidance
at 12–13 (frequency and severity of past
exceedances may be a factor considered
in determining the reasonableness of
controls). Also, the Interim Guidance
acknowledges that events do not
necessarily have to be rare to qualify as
exceptional events. See Interim
Guidance at 3 and 20.
Comment: ACLPI commented that
EPA’s analysis of whether the events are
reasonably preventable or controllable
should have been more probing and not
a ‘‘cookie cutter’’ approach, given the
frequency and severity of the
exceedances, as well as the area’s status
as serious nonattainment and the State’s
previous withdrawal of its earlier Five
Percent Plan.
19 See spreadsheet entitled ‘‘EPA Exceptional
Event Concurrence Sheet,’’ included in the docket
for this rule.
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Response: The State submitted
documentation on March 14, 2012,
January 28, 2013, and February 13, 2013
to demonstrate to EPA that exceedances
of the PM–10 NAAQS on various dates
in 2011 and 2012 meet the criteria for
an exceptional event in the EER. The
State’s submittals comprise over 1750
pages of documentation of the facts
supporting each of the identified
exceptional events. Our TSDs
accompanying our concurrence letters
dated September 6, 2012, May 6, 2013,
and July 1, 2013 reflect EPA’s
methodical and systematic review of the
State’s documentation of the events and
EPA’s technical expertise and judgment.
EPA presented its conclusions in a
standardized format that was
appropriate, considering the volume of
information presented and reviewed, as
well as the purpose of informing the
public. In addition, EPA notes that we
also received several comments in this
rulemaking regarding the process
required to document exceedances as
‘‘exceptional events’’ contending that
the level of resources required to
prepare and submit such documentation
to EPA was too onerous.
Comment: ACLPI commented that the
events excluded by EPA were
predictable and seasonal in nature and
could be ameliorated if the State
adopted appropriate control measures
for windblown dust both in the
attainment (sic) area and statewide.
Response: For each of the events that
EPA concurred with, EPA found that the
event was not reasonably controllable or
preventable (nRCP). EPA’s Interim
Guidance states that, for anthropogenic
sources of dust, ‘‘a high wind dust event
may . . . be considered to be not
reasonably controllable or preventable
if: (1) The anthropogenic sources of dust
have reasonable controls in place; (2)
the reasonable controls have been
effectively implemented and enforced;
and (3) the wind speed was high enough
to overwhelm the reasonable controls.’’
See Interim Guidance at 10.
EPA’s determinations of nRCP were
primarily based on consideration of the
control requirements based on the
Area’s serious nonattainment
classification for the PM–10 NAAQS.
See Interim Guidance at 13. ADEQ
provided detailed information of
required controls (including BACMlevel controls for significant sources
previously approved by EPA for this
area), as well as information on rule
implementation, rule effectiveness,
compliance and enforcement, alert
systems and public notification
activities. A typical example is the
documentation ADEQ submitted in
connection with the event that occurred
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on August 11, 2012. State of Arizona,
Exceptional Event Documentation for
the Event of August 11, 2012 for the
Phoenix PM–10 Nonattainment Area,
February 2013 (AZ EE Documentation
for August 11, 2012). This submittal
included a list of control measures
regulating sources of dust in Maricopa
and Pinal counties, information about
rule effectiveness, and data regarding
compliance and enforcement. See AZ
EE Documentation for August 11, 2012,
Section 5.
In addition, EPA’s determinations of
nRCP were based on ADEQ’s
documentation of wind speeds. For
example, the exceedances that occurred
on September 11 and 12, 2011 involved
wind speeds of 20 miles per hour (mph)
and 25 mph, respectively. See e.g., EPA
Letter dated July 1, 2013, and
accompanying TSD at p. 4. See also,
e.g., TSD discussion of June 16, 2012
event at p. 10 (sustained wind speeds of
29 mph–32 mph); TSD discussion of
June 27, 2012 event at p. 15 (sustained
wind speeds of 31 mph–38 mph); TSD
discussion of July 11, 2012 event at p.
20 (sustained wind speeds of 20 mph–
25 mph).20 Given the wind speeds
associated with each of the events that
EPA concurred upon, EPA believes
ADEQ’s controls assessment was
appropriate and that the pre-existing
and previously approved BACM level
controls are adequate for meeting the
requirement of ‘‘reasonable controls’’ for
a PM–10 serious nonattainment area.
Additional information regarding
EPA’s consideration of reasonable
controls can be found in EPA’s TSDs for
each event.
E. Exceptional Events and Reasonable
Controls
Comment: ACLPI commented that
BACM level controls were not in place
in the nonattainment area. ACLPI
commented that EPA’s Interim
Guidance says that BACM measures
may be insufficient if the SIP has not
been recently reviewed and that EPA
has indicated that it will consider
windblown dust BACM to be reasonable
controls for purposes of exceptional
events claims if the measures have been
reviewed and approved in the context of
a SIP revision within the past three
years and if the measures are specific to
20 The commenter did not specify particular dates
or exceedances for which she found EPA’s analysis
deficient; therefore, EPA’s response provides just a
few examples from our TSDs in which we refer to
the documentation of wind speeds included in the
State’s submittals. We reiterate, however, that our
review of the State’s submittals involved a
methodical, case-by-case approach as documented
by each of the TSDs accompanying our concurrence
letters dated September 6, 2012, May 6, 2013 and
July 1, 2013.
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windblown dust. ACLPI commented
that EPA’s proposed action departs from
this guidance because EPA last
approved BACM for the area in 2002,
with a supplemental analysis in 2006.
Response: EPA’s Interim Guidance
states: ‘‘Generally, the EPA will
consider windblown dust BACM to
constitute reasonable controls if these
measures have been reviewed and
approved in the context of a SIP
revision for the emission source area
within the past three years.’’ Interim
Guidance at 15. Although our BACM
determinations were made outside this
recommended time frame, we believe
that our determinations regarding nRCP
were correct. First, the 2012 Five
Percent Plan shows that the significant
stationary source categories for PM–10
are: construction; unpaved roads and
alleys; paved road dust; windblown
dust (non-agriculture); unpaved parking
lots; and off-road recreational
vehicles.21 Each of these source
categories was included in our earlier
BACM determinations. See 67 FR 48718
(July 25, 2002); see also, 67 FR 48733–
34. Because the significant sources
within the Phoenix PM–10
nonattainment area have not
significantly changed since 2002, and
the range of potential measures for
controlling emissions from these source
categories (e.g., stabilization of
disturbed surface areas; spray bars to
apply water or dust suppressants; track
out, rumble grate and wheel washer
requirements) have not significantly
changed since 2002, we believe that our
previous BACM determinations remain
appropriate for the purposes of making
exceptional event determinations,
including determinations regarding
nRCP.
Second, although the State has not
prepared a new BACM analysis and
EPA has not made new BACM
determinations in the past three years,
Arizona has adopted revisions to rules
regulating sources of windblown dust
that EPA has approved into the SIP
because they are more stringent.
Specifically, EPA has approved updated
revisions of: Rule 310, which regulates
sources of fugitive dust from dust
generating operations such as
construction; Rule 310.01, which
regulates sources of windblown dust
from open areas, vacant lots, unpaved
parking lots, and unpaved roadways;
and Rule 316, which regulates sources
of dust from nonmetallic mineral
processing.22
21 MAG
2012 Five Percent Plan, at -. 5–7, Table
5–3.
22 See 74 FR 58554 (November 13, 2009) (EPA
approval of Maricopa County’s revisions to Rule
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Third, to the extent the commenter
interprets the Interim Guidance as
stating that a BACM determination that
is older than three years cannot be
relied upon in a demonstration of
reasonable controls, the commenter is
incorrect. The Interim Guidance
provides a guideline to states preparing
documentation to submit to EPA that
more recent BACM determinations will
generally satisfy EPA’s consideration of
reasonable controls. It does not
disqualify measures that EPA
determined to be BACM more than three
years previously from consideration as
reasonable controls, nor does it impose
an obligation on the part of the state or
EPA to re-evaluate BACM.
Comment: ACLPI commented that
EPA found that the 2007 Maricopa BMP
Rule no longer represents BACM for
agricultural emissions (referencing
statements in a 2010 proposed
rulemaking and in a 2010 letter to the
Arizona Agricultural Best Management
Practices (BMP) Committee) and that
although the 2007 Maricopa BMP Rule
was revised in 2011, the revisions were
not implemented until March 2012. The
commenter states that 98 of the 217
exceedances at issue occurred in 2011
(i.e., prior to the implementation of the
2011 Maricopa BMP Rule revisions).
The commenter argued that even into
2012, the ‘‘revised Maricopa BMP Rule’’
(which EPA understands to be a
reference to the 2011 Maricopa BMP
Rule) is not clearly BACM because it did
not include EPA’s recommendations for
improvement. The commenter
concludes that EPA’s concurrence on
exceptional events was erroneous
because EPA relied on its prior approval
of the State’s previous BACM
demonstration and did not attempt to
determine whether the controls in place
during the event were BACM.
Response: Our response above
explains why the CAA does not require
EPA to reevaluate its earlier BACM
determination in connection with our
action on the 2012 Five Percent Plan.
We understand the commenter to be
asserting another basis for EPA to
reevaluate BACM, in particular, that
EPA’s concurrence on exceptional
events may be a basis to require EPA to
make a determination regarding BACM.
EPA’s Interim Guidance, however, states
that BACM for windblown dust is a
measure that EPA has identified as
being ‘‘reasonable’’ for the purposes of
exceptional events determinations.
Interim Guidance at 15. The Interim
316, adopted on March 12, 2008); 75 FR 78167
(December 15, 2010) (EPA approval of Maricopa
County’s revisions to Rule 310 and 310.01, adopted
on January 27, 2010).
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Guidance acknowledges that ‘‘[h]aving
BACM/RACM in place during the time
of the event is an important
consideration’’ for an exceptional event
determination, but more justification
may be necessary if, for example, the
measures are not related to windblown
dust, or if the SIP has not been recently
reviewed. Id. For the reasons set forth
below, EPA’s reliance on the BACM
determinations it made in 2002 was a
reasonable basis to concur on the State’s
exceptional event claims.23
First, the 2008 Inventory shows that
agricultural sources are a very small
contributor to windblown dust in
Maricopa County. According to the 2008
Inventory, agricultural windblown dust
comprises approximately 0.9% of the
total annual windblown dust emissions
in the nonattainment area (448 tons out
of a total of 49,673.01 tons in 2012).24
Other agricultural sources, such as
tilling, harvesting, and cotton ginning,
comprise approximately 1.8% of the
total annual PM–10 emissions inventory
(893 tons out of a total of 49,673.01 tons
in 2012).25 Thus, agricultural sources
contribute only a relatively small
percentage of the total emissions in the
2008 Inventory.
Second, in determining that the
exceedances that occurred in 2011 and
2012 were nRCP, it was appropriate for
EPA to find that the existing controls
were ‘‘reasonable’’ because, as we
explained above, the State met the
requirements of section 189(d) in the
2012 Five Percent Plan without relying
on additional reductions from
agricultural sources. Significantly, no
additional reductions from the Maricopa
BMP Rule were needed to demonstrate
that the area would attain the
standard.26 Therefore, our
determination that existing BACM
requirements were sufficient to find that
emissions sources were reasonably
controlled at the time the exceedances
occurred was appropriate.
Third, we acknowledge that EPA has
previously indicated to the State that
23 EPA notes that it applies a weight-of-theevidence standard in evaluating exceptional events
claims. See e.g., Interim Guidance at 8: ‘‘The EPA
uses a weight-of-the-evidence approach in
reviewing air agency requests for data exclusion
under the EER [Exceptional Events Rule]. Evidence
and narrative that constitute a strong demonstration
for one element can also be part of the
demonstration for another element, but cannot
make up for the absence of or insufficient
explanation supporting another element. A strong
demonstration for one requirement could, however,
influence the persuasiveness of the demonstration
for another.’’
24 Id. at p. II–3, Table II–2; see also, MAG 2012
Five Percent Plan at p. 5–5, Table 5–2.
25 Id.
26 See MAG 2012 Five Percent Plan, at p. 5–7,
Table 5–3.
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improvements to controls on
agricultural sources should be
considered. It is important to note,
however, that EPA’s proposed 2010
rulemaking was a proposed action to
disapprove a different section 189(d)
plan, the State’s 2007 Five Percent Plan,
in part because of EPA’s concerns
regarding the accuracy of the State’s
2005 Periodic Emission Inventory. (We
also note that the proposed rulemaking
was never finalized.) It is also important
to note that EPA’s comments to the Ag
BMP Committee predate the finalization
of the 2008 Emission Inventory (May
2012) in which emissions from
agricultural sources are a small part of
the PM–10 emissions inventory.
Further, although the 2008 Inventory
indicates that agricultural sources are
relatively small contributors to PM–10
emissions in the Maricopa County PM–
10 Nonattainment Area, EPA believes
that agriculture is a significant source in
certain portions of Pinal County, which
EPA recently redesignated as a PM–10
nonattainment area. See 77 FR 32024
(May 31, 2012). Therefore, EPA believes
that it is important to continue to
improve the controls on agricultural
sources, and EPA is working with
ADEQ, stakeholders, and the Governor’s
Agricultural BMP Committee to improve
these controls.
Comment: ACLPI commented that
ADEQ and EPA did not adequately
address the issue of whether the events
were reasonably controllable or
preventable with respect to sources
outside the Maricopa County PM–10
Nonattainment Area. ACLPI stated that
EPA’s Interim Guidance says that a
basic controls analysis should consider
all upwind areas of disturbed soil to be
potential contributing sources, and that
the basic controls analysis should
identify all contributing sources in
upwind areas and provide evidence that
such sources were reasonably
controlled, whether anthropogenic or
natural, and include inspection reports
and/or notices of violation, if available.
The commenter stated that ADEQ and
EPA did not indicate that control
measures outside of Maricopa County
were evaluated for their
‘‘reasonableness.’’ ACLPI commented
that Pinal County’s controls are
‘‘minimalist rules’’ that do not require
controls to address emissions caused
solely by high wind events and that
although Pinal County was only
recently designated nonattainment,
Pinal County should not be excused
from the requirement to show that
sources in the county were subject to
reasonable controls.
Response: The comment concerns the
level of controls imposed on sources
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outside the Maricopa County PM–10
Nonattainment Area, in particular,
sources located in Pinal County. As
noted in our proposed action, the
Maricopa County PM–10 Nonattainment
Area encompasses several cities within
Maricopa County (including the cities of
Phoenix, Mesa, Scottsdale, Tempe,
Chandler, and Glendale), and several
other smaller jurisdictions and
unincorporated county lands. The
Maricopa County PM–10 Nonattainment
Area also includes the town of Apache
Junction in Pinal County. Recently, EPA
designated a portion of Pinal County
(‘‘West Pinal’’) as a moderate PM–10
nonattainment area, which triggered
nonattainment planning obligations that
the State must fulfill. See 77 FR 32024
(May 31, 2012).27
EPA’s Interim Guidance contemplates
that a basic controls analysis should
include ‘‘a brief description’’ of upwind
sources. The level of detail provided in
describing the Pinal County sources was
adequate given relevant factors such as
wind speed. Moreover, ADEQ and EPA
both indicated that they evaluated
control measures outside of Maricopa
County. For example, ADEQ’s
exceptional event documentation
included an analysis of reasonable
controls that identified measures that
apply to sources located within the
Maricopa County PM–10 Nonattainment
Area, and measures applicable to
sources in Pinal County, outside the
Maricopa County PM–10 Nonattainment
Area.28 ADEQ specifically identified
two Pinal County rules, Article 2,
Fugitive Dust, and Article 3,
Construction Sites—Fugitive Dust, as
regulatory control measures.29 EPA’s
TSDs also referenced this section of
ADEQ’s documentation, including the
discussion of rules applicable to sources
in Pinal County.30
In addition, the level of detail
describing Pinal County sources and
controls was also adequate for an area
such as Pinal County for which a
portion was recently redesignated as a
27 We note that our action on the 2012 Five
Percent Plan relates to our concurrences with the
State’s exceptional event claims for exceedances at
monitors for the Maricopa County PM–10
Nonattainment Area dated September 6, 2012, May
6, 2013, and July 1, 2013. Our action on the 2012
Five Percent Plan does not depend on data from
monitors located within the newly redesignated
West Pinal PM–10 Nonattainment Area or on any
exceptional events claims regarding data from such
monitors.
28 See e.g., ADEQ EE Documentation for July
3–8, 2011 at 39–45; in particular, ppg. 40–41, Tables
4–1 and 4–3 (sources within the Maricopa PM–10
Nonattainment Area) and Table 4–2 (sources
outside the Maricopa PM–10 Nonattainment Area).
29 Id. at 41, Table 4–2.
30 See e.g., EPA Letter dated Sept. 9, 2012 and
accompanying TSD at 3.
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PM–10 nonattainment area and is
currently undergoing the nonattainment
planning process. As EPA’s Interim
Guidance states, an area’s attainment
status is an appropriate guideline for
assessing the reasonableness of controls:
‘‘Generally, the EPA does not expect
areas classified as attainment,
unclassifiable, or maintenance for a
NAAQS to have the same level of
controls as areas that are nonattainment
for the same NAAQS. Also, if an area
has been recently designated to
nonattainment but has not yet been
required to implement controls, the EPA
will expect the level of controls that is
appropriate for the planning stage.’’
Interim Guidance at 15. EPA’s recent
redesignation of a portion of Pinal
County as a moderate PM–10
nonattainment area triggered CAA
planning obligations for the State to
develop regulations to implement
controls such as Reasonably Available
Control Measures (RACM) for existing
sources of PM–10 and a section 173
preconstruction permitting program for
new and modified sources of PM–10.
EPA concurred with exceedances that
occurred in 2011 and 2012; the latest
exceedance occurred on September 6,
2012, well before the CAA’s deadline for
Arizona to submit an implementation
plan to EPA for approval into the
Arizona SIP. See 77 FR 32030.
Comment: ACLPI commented that
claims that events were caused by
‘‘winds transporting dust from desert
areas of Pima and Pinal Counties’’ are
not substantiated and that the State’s
demonstrations do not determine source
locations, as required by EPA’s 2013
Interim Guidance (referencing 3.1.5.1).
ACLPI conducted its own analysis of the
event that occurred on July 18, 2011.
ACLPI commented that its analysis
indicates that dust sources included
agricultural sources in Pinal and
Maricopa Counties, and that four
downdrafts and four outflows impacted
the monitors from multiple locations, in
contrast to the State’s assertion that one
thunderstorm outflow transported dust
from desert portions of Pinal and Pima
counties into the Phoenix PM–10
nonattainment area. ACLPI stated that
although the State claims that specific
source areas are difficult to determine
because of the less dense monitoring
network in the general source area,
ACLPI’s analysis shows that likely
source locations can be determined
using meteorological modeling and
observational data. Therefore, EPA
should require the state to make a more
concerted effort to identify the actual
sources and adopt controls to avoid or
ameliorate future events.
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Response: Although a more refined
analysis of the location of thunderstorm
downdrafts and source areas is
potentially helpful for certain high wind
dust events, this additional analysis is
not necessary to analyze the specific
events that EPA concurred on. EPA
reviewed the commenter’s analysis and
concluded that it does not contradict
ADEQ’s documentation, but rather
corroborates the evidence presented in
ADEQ’s demonstration. ADEQ’s
documentation states that the
contributing source regions were
somewhat widespread, but that the
‘‘majority’’ of the PM that was
transported into Maricopa County likely
originated from areas within Pinal
County to the south and southeast of
Maricopa County.31 ADEQ also
explained that it is likely that some dust
was generated within the Maricopa
County PM–10 Nonattainment Area as
gusts from the thunderstorm outflows
passed through the area.32 Thus, ADEQ
did not claim that all the emissions
were specifically caused by a single
thunderstorm outflow. ADEQ’s
statement that the ‘‘majority’’ of the
emissions were transported from areas
of Pinal County and southeast Maricopa
County is supported by the visualization
of images from the Phoenix visibility
camera included in the July 18, 2011
demonstration, which shows a large
dust storm approaching from the south
of the Maricopa County PM–10
Nonattainment Area.33
Comment: ACLPI commented that the
fact that some of the sources are located
outside of the Maricopa County PM–10
Nonattainment Area does not absolve
the State of its responsibility to ensure
that they are reasonably controlled. The
commenter stated that ADEQ is the
single responsible actor for air quality
control in Arizona and had the
responsibility to address the public
health risk presented by sources in Pinal
County, particularly given high wind
events experienced in 2008 and 2009.
Response: EPA agrees that the State
has a responsibility to ensure that
sources outside the Maricopa County
PM–10 Nonattainment Area are
reasonably controlled. Our action with
respect to exceedances at Maricopa
County PM–10 Nonattainment Area
monitors does not absolve in any way
the State’s responsibility to address PM–
10 emissions in the West Pinal PM–10
Nonattainment Area. Our July 2012
redesignation of West Pinal to
31 State
of Arizona Exceptional Event
Documentation for the Event of July 18, 2011, for
the Phoenix PM–10 Nonattainment Area, Jan. 23,
2013 at p. 9.
32 Id. at 18.
33 Id. at 27.
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nonattainment triggers Clean Air Act
nonattainment planning obligations that
Arizona must fulfill. See 77 FR 32030.
We note that our action on the 2012
Five Percent Plan relates to our
concurrences with the State’s
exceptional event claims for
exceedances at monitors for the
Maricopa County PM–10 Nonattainment
Area dated September 6, 2012, May 6,
2013, and July 1, 2013, and does not
depend on the treatment of data for
monitors located within the newly
redesignated West Pinal PM–10
Nonattainment Area.
F. Exceedances in 2013
Comment: ACLPI commented that the
Maricopa County PM–10 Nonattainment
Area experienced 30 exceedances over
six days in 2013, which ADEQ has
flagged and for which ADEQ is
preparing EE documentation, and that
EPA is simply assuming that it will
concur with these EE demonstrations.
The commenter stated that this is
unsupportable, particularly in light of
EPA’s failure to require mitigation
measures and that there are frequent
and severe violations of the standard at
multiple monitors, many of which are
located in low income neighborhoods.
Response: The 2012 Five Percent Plan
was based on a projection that that the
Area would attain the NAAQS in 2012.
If, upon review of the available
evidence, EPA finds that the
exceedances of the standard in 2013
constitute a new violation of the PM–10
NAAQS, we have the authority to
require the state to submit a SIP revision
with additional controls and a
demonstration that the new controls
will bring the area back into attainment
with the standard.34
G. Contingency Measures
Comment: ACLPI stated that EPA’s
proposal acknowledges that the
contingency measures in the 2012 Five
Percent Plan are already being
implemented. The commenter stated
that CAA (175(d)) envisions additional
measures that are automatically and
immediately implemented if a milestone
for reasonable further progress or
attainment is not met. The commenter
stated that if contingency measures are
already being implemented when a
milestone is missed, continued
implementation will not ensure that the
situation will be corrected. The
34 E.g., under CAA section 110(k)(5) EPA may
require a state to revise its SIP if we find it to be
substantially inadequate to maintain the relevant air
quality standard. In such a situation, EPA notifies
a state of the inadequacies and can allow the state
up to 18 months to submit revisions to the SIP to
address the problems. See 42 U.S.C. 7410(k)(5).
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commenter argues that LEAN v. EPA is
not binding on the 9th Cir. and is
contrary to the plain language of the
CAA. The commenter stated that
approval of the 2012 Five Percent Plan
without meaningful and appropriate
contingency measures is contrary to
law.
Response: EPA disagrees with the
comment. Contingency measures must
provide for additional emission
reductions that are not relied on for RFP
or attainment and that are not included
in the attainment demonstration.
Nothing in the statute precludes a state
from implementing such measures
before they are triggered. See, e.g.,
LEAN v. EPA, 382 F.3d 575 (5th Cir.
2004) (upholding contingency measures
that were previously required and
implemented where they were in excess
of the attainment demonstration and
RFP SIP).
EPA has approved numerous SIPs
under this interpretation—i.e., SIPs that
use as contingency measures one or
more Federal or local measures that are
in place and provide reductions that are
in excess of the reductions required by
the attainment demonstration or RFP
plan. See, e.g., 62 FR 15844 (April 3,
1997) (direct final rule approving an
Indiana ozone SIP revision); 62 FR
66279 (December 18, 1997) (final rule
approving an Illinois ozone SIP
revision); 66 FR 30811 (June 8, 2001)
(direct final rule approving a Rhode
Island ozone SIP revision); 66 FR 586
(January 3, 2001) (final rule approving
District of Columbia, Maryland, and
Virginia ozone SIP revisions); and 66 FR
634 (January 3, 2001) (final rule
approving a Connecticut ozone SIP
revision).
The scenario described by the
commenter that already-implemented
contingency measures will be a problem
if the Maricopa County PM–10
Nonattainment Area misses a deadline
for RFP or attainment is mitigated by the
fact that monitoring data for 2010–2012
show that the Area already attained the
24-hour PM–10 NAAQS as of December
12, 2012. See 79 FR 7122. Our approval
of the contingency measures is also
consistent with EPA guidance that ‘‘the
potential nature and extent of any
attainment shortfall for the area’’ is
relevant to the determining the level of
required emission reductions and that
contingency measures ‘‘should
represent a portion of the actual
emission reductions necessary to bring
about attainment in area.’’ 72 FR 20586,
20643; see also PM–10 Addendum at
42015 (the emission reductions
anticipated by the contingency
measures should be equal to
approximately one-year’s worth of
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emission reductions needed to achieve
RFP for the area.) EPA’s approval of
contingency measures that are already
being implemented is particularly
appropriate where, as is the case for the
Maricopa County PM–10 Nonattainment
Area, there are no future RFP or
attainment deadlines.
emcdonald on DSK67QTVN1PROD with RULES
H. Other Comments
Comment: ADEQ asked that EPA
clarify that this action applies to the
entire nonattainment area, including the
portion in Pinal County, and not just to
the Maricopa County portion.
Response: EPA has made this
clarification.
Comment: Several commenters noted
that the plan was developed through a
cooperative discussion among the many
stakeholders in the plan. According to
the commenters, this process led to
innovative strategies that are
appropriate to the local conditions and
consistent with EPA requirements.
Response: EPA acknowledges these
comments.
Comment: Several commenters
expressed concerns about the resources
required to demonstrate that measured
exceedances of the standard are due to
exceptional events. These commenters
recommended changing the Exceptional
Events Rule to address this issue.
Response: EPA will consider these
comments in future rulemakings on the
Exceptional Events Rule.
III. EPA’s Final Action
As a result of our proposed rule and
our response to comments above, we are
finalizing our proposal to approve the
2012 Five Percent Plan as meeting the
requirements of the CAA for the
Maricopa County PM–10 nonattainment
area. Specifically, we are approving:
(A) The 2008 baseline emissions
inventory and the 2007, 2009, 2010,
2011 and 2012 projected emission
inventories as meeting the requirements
of CAA section 172(c)(3);
(B) the attainment demonstration as
meeting the requirements of CAA
sections 189(d) and 179(d)(3);
(C) the five percent demonstration as
meeting the requirements of CAA
section 189(d);
(D) the reasonable further progress
and quantitative milestone
demonstrations as meeting the
requirements of CAA sections 172(c)(2)
and 189(d);
(E) the contingency measures as
meeting the requirements of CAA
section 172(c)(9); and
(F) the motor vehicle emissions
budget as compliant with the budget
adequacy requirements of 40 CFR
93.118(e).
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IV. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve State choices,
provided that they meet the criteria of
the Clean Air Act. Accordingly, this
action merely approves State law as
meeting Federal requirements and does
not impose additional requirements
beyond those imposed by State law. For
that reason, this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act(5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the Clean Air Act;
and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because it does not
apply in Indian country located in the
State, and EPA notes that it will not
impose substantial direct costs on tribal
governments or preempt tribal law.
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33115
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by August 11, 2014. Filing a
petition for reconsideration by the
Administrator of this final rule does not
affect the finality of this action for the
purposes of judicial review nor does it
extend the time within which a petition
for judicial review may be filed, and
shall not postpone the effectiveness of
such rule or action. This action may not
be challenged later in proceedings to
enforce its requirements (see section
307(b)(2)).
List of Subjects in 40 CFR Part 52
40 CFR Part 52
Environmental protection, Air
pollution control, Intergovernmental
relations, Incorporation by reference,
Particulate matter, Reporting and
recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 30, 2014.
Jared Blumenfeld,
Regional Administrator, Region IX.
Part 52, Chapter I, Title 40 of the Code
of Federal Regulations is amended as
follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart D—Arizona
2. Section 52.120 is amended by
adding paragraphs (c)(157)(ii)(A)(1) and
(2) to read as follows:
■
§ 52.120
*
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Identification of plan.
*
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*
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Federal Register / Vol. 79, No. 111 / Tuesday, June 10, 2014 / Rules and Regulations
(c) * * *
(157) * * *
(i) * * *
(ii) Additional materials.
(A) Arizona Department of
Environmental Quality.
(1) 2012 Five Percent Plan for PM–10
for the Maricopa County Nonattainment
Area, and Appendices Volume One and
Volume Two, adopted May 23, 2012.
(2) 2012 Five Percent Plan for PM–10
for the Pinal County Township 1 North,
Range 8 East Nonattainment Area,
adopted May 25, 2012.
*
*
*
*
*
[FR Doc. 2014–13495 Filed 6–9–14; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2014–0311; FRL–9911–90–
Region–4]
Approval and Promulgation of
Implementation Plans Alabama:
Volatile Organic Compounds
Environmental Protection
Agency (EPA).
ACTION: Direct final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is taking direct final
action to approve a revision to the
Alabama State Implementation Plan
(SIP) submitted by the Alabama
Department of Environmental
Management (ADEM) on September 3,
2013. The revision modifies the
definition of ‘‘volatile organic
compounds’’ (VOCs). Specifically, the
revision adds four
hydrofluoropolyethers (HFPEs)
compounds, to the list of those excluded
from the VOC definition on the basis
that these compounds make a negligible
contribution to tropospheric ozone
formation. ADEM is updating its SIP to
be consistent with EPA rule finalized on
February 12, 2013, which excludes
these compounds from the regulatory
VOC definition.
DATES: This rule is effective on August
11, 2014 without further notice, unless
EPA receives relevant adverse comment
by July 10, 2014. If EPA receives such
comment, EPA will publish a timely
withdrawal in the Federal Register
informing the public that this rule will
not take effect.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R04–
OAR–2014–0311, by one of the
following methods:
emcdonald on DSK67QTVN1PROD with RULES
SUMMARY:
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1. www.regulations.gov: Follow the
on-line instructions for submitting
comments.
2. Email: R4-RDS@epa.gov.
3. Fax: (404) 562–9019.
4. Mail: ‘‘EPA–R04–OAR–2014–
0311,’’ Regulatory Development Section,
Air Planning Branch, Air, Pesticides and
Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960.
5. Hand Delivery or Courier: Lynorae
Benjamin, Chief, Regulatory
Development Section, Air Planning
Branch, Air, Pesticides and Toxics
Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960. Such
deliveries are only accepted during the
Regional Office’s normal hours of
operation. The Regional Office’s official
hours of business are Monday through
Friday, 8:30 a.m. to 4:30 p.m., excluding
Federal holidays.
Instructions: Direct your comments to
Docket ID No. ‘‘EPA–R04–OAR–2014–
0311.’’ EPA’s policy is that all
comments received will be included in
the public docket without change and
may be made available online at
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit through
www.regulations.gov or email,
information that you consider to be CBI
or otherwise protected. The
www.regulations.gov Web site is an
‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an email comment directly
to EPA without going through
www.regulations.gov, your email
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. 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.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses. For additional information
about EPA’s public docket visit the EPA
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Docket Center homepage at https://
www.epa.gov/epahome/dockets.htm.
Docket: All documents in the
electronic docket are listed in the
www.regulations.gov index. Although
listed in the index, some information is
not publicly available, i.e., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
is not placed on the Internet and will be
publicly available only in hard copy
form. Publicly available docket
materials are available either
electronically in www.regulations.gov or
in hard copy at the Regulatory
Development Section, Air Planning
Branch, Air, Pesticides and Toxics
Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960. EPA
requests that if at all possible, you
contact the person listed in the FOR
FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional
Office’s official hours of business are
Monday through Friday, 8:30 a.m. to
4:30 p.m., excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Richard Wong, Regulatory Development
Section, Air Planning Branch, Air,
Pesticides and Toxics Management
Division, U.S. Environmental Protection
Agency, Region 4, 61 Forsyth Street
SW., Atlanta, Georgia 30303–8960. Mr.
Richard Wong may be reached by phone
at (404) 562–8726 or by electronic mail
address wong.richard@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
Tropospheric ozone, commonly
known as smog, occurs when VOCs and
nitrogen oxides (NOX) react in the
atmosphere. Because of the harmful
health effects of ozone, EPA limits the
amount of VOCs and NOX that can be
released into the atmosphere. VOCs are
those compounds of carbon (excluding
carbon monoxide, carbon dioxide,
carbonic acid, metallic carbides or
carbonates, and ammonium carbonate)
that form ozone through atmospheric
photochemical reactions. Compounds of
carbon (or organic compounds) have
different levels of reactivity; they do not
react at the same speed, or do not form
ozone to the same extent.
It has been EPA’s policy that
compounds of carbon with negligible
reactivity need not be regulated to
reduce ozone. See 42 FR 35314, July 8,
1977. EPA determines whether a given
carbon compound has ‘‘negligible’’
reactivity by comparing the compound’s
reactivity to the reactivity of ethane.
EPA lists these compounds in its
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]]>Agencies
[Federal Register Volume 79, Number 111 (Tuesday, June 10, 2014)]
[Rules and Regulations]
[Pages 33107-33116]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-13495]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2013-0762; FRL-9912-01-Region 9]
Approval and Promulgation of Implementation Plans--Maricopa
County PM-10 Nonattainment Area; Five Percent Plan for Attainment of
the 24-Hour PM-10 Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is approving a State
implementation plan (SIP) revision submitted by the State of Arizona to
meet Clean Air Act (CAA) requirements applicable to the Maricopa County
(Phoenix) PM-10 Nonattainment Area. The Maricopa County PM-10
Nonattainment Area is designated as a serious nonattainment area for
the national ambient air quality standards (NAAQS) for particulate
matter of ten microns or less (PM-10). The submitted SIP revision
consists of the Maricopa Association of Governments 2012 Five Percent
Plan for PM-10 for the Maricopa County Nonattainment Area and the 2012
Five Percent Plan for the Pinal County Township 1 North, Range 8 East
Nonattainment Area'' (collectively, the 2012 Five Percent Plan). EPA is
approving the 2012 Five Percent Plan as meeting all relevant statutory
and regulatory requirements.
DATES: This rule is effective on July 10, 2014.
ADDRESSES: You may inspect the supporting information for this action,
identified by docket number EPA-R09-OAR-2013-0762, by one of the
following methods:
1. Federal eRulemaking portal, https://www.regulations.gov, please
follow the online instructions; or,
2. Visit our regional office at, U.S. Environmental Protection
Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901.
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
documents in the docket are listed in
[[Page 33108]]
the index, some information may be publicly available only at the hard
copy location (e.g., voluminous records, large maps, copyrighted
material), and some may not be publicly available in either location
(e.g., Confidential Business Information). To inspect the hard copy
materials, please schedule an appointment during normal business hours
with the contact listed directly below.
FOR FURTHER INFORMATION CONTACT: Doris Lo, EPA Region IX, (415) 972-
3959, lo.doris@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to EPA.
Table of Contents
I. Summary of Proposed Action
II. Public Comments and EPA Responses
III. EPA's Final Action
IV. Statutory and Executive Order Reviews
I. Summary of Proposed Action
On February 6, 2014 (79 FR 7118), EPA proposed to approve the 2012
Five Percent Plan,\1\ which the State of Arizona submitted on May 25,
2012, as meeting all relevant statutory and regulatory requirements
under the Clean Air Act (CAA). As discussed in our proposed rule, the
Maricopa County (Phoenix) PM-10 nonattainment area is a serious PM-10
nonattainment area, and is located in the eastern portion of Maricopa
County and encompasses the cities of Phoenix, Mesa, Scottsdale, Tempe,
Chandler, Glendale, several other smaller jurisdictions, unincorporated
County lands, as well as the town of Apache Junction in Pinal County.
Arizona's obligation to submit the 2012 Five Percent Plan was triggered
by EPA's June 6, 2007 finding that the Maricopa PM-10 Nonattainment
Area had failed to meet its December 31, 2006 deadline to attain the
PM-10 NAAQS. The CAA requires a serious PM-10 nonattainment area that
fails to meet its attainment deadline to submit a plan providing for
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 until
attainment. Our February 6, 2014 proposed rule provides the background
and rationale for this action.\2\
---------------------------------------------------------------------------
\1\ The 2012 Five Percent Plan includes the ``MAG 2012 Five
Percent Plan for PM-10 for the Maricopa County Nonattainment Area''
(dated May 2012) (MAG 2012 Five Percent Plan) and the ``2012 Five
Percent Plan for the Pinal County Township 1 North, Range 8 East
Nonattainment Area'' (dated May 25, 2012) (Pinal 2012 Five Percent
Plan) (collectively, the 2012 Five Percent Plan). In our proposed
rule we cited primarily to the MAG 2012 Five Percent Plan; however,
both plans were submitted by ADEQ on May 25, 2012 and are included
in the docket for this rulemaking. See May 25, 2012 letters from
Henry R. Darwin, Director, Arizona Department of Environmental
Quality, to Jared Blumenfeld, Regional Administrator, U.S.
Environmental Protection Agency Region IX.
\2\ We have also approved Arizona statutory provisions and the
Dust Action General Permit, which were submitted with the 2012 Five
Percent Plan. See our proposed rule at 79 FR 7118, p. 7123 (footnote
20) and recent EPA actions at 79 FR 17878 (March 31, 2014), 79 FR
17879 (March 31, 2014) and 79 FR 17881 (March 31, 2014).
---------------------------------------------------------------------------
II. Public Comments and EPA Responses
EPA provided a 30-day public comment period on our proposed action.
The comment period ended on March 10, 2014. We received 12 public
comment letters from State and local agencies, industry, congressional
representatives and environmental groups.\3\ All of the submitted
comment letters are in our docket. We respond to all the comments
below.
---------------------------------------------------------------------------
\3\ Commenting organizations include: U.S. Senator Jeff Flake,
Arizona Center for Law in the Public Interest (2 letters), Maricopa
Association of Governments, City of Phoenix, Arizona Rock Products
Association, Salt River Project, ADEQ, Arizona Association of
General Contractors, Maricopa County Air Quality Department, the
Arizona Chamber of Commerce, and Amanda Reeve, former Arizona State
Representative and Chair of Arizona House Environment Committee.
---------------------------------------------------------------------------
A. Update 2002 BACM and MSM Determinations
Comment: The Arizona Center for Law in the Public Interest (ACLPI)
commented that EPA's proposed action did not discuss or analyze
requirements under CAA 189(b)(1)(B) for best available control measures
(BACM) or requirements under CAA 188(e) for most stringent measures
(MSM). ACLPI stated that these requirements apply to the Maricopa
County PM-10 nonattainment area because it is a serious PM-10
nonattainment area that obtained a five-year extension of its
attainment date pursuant to section 188(e) in 2001. ACLPI also asserts
that EPA's 2002 approval of BACM and MSM requirements must be updated
in light of EPA's statements in correspondence to ADEQ and in a
proposed rulemaking in 2010 that new more stringent control measures
have been adopted by air agencies in Nevada and California and that
agricultural controls no longer represent BACM. ACLPI also states that
addressing the question of whether existing control constitute BACM is
necessary in order to evaluate ADEQ's claims that 135 exceedances
qualify as exceptional events.
Response: EPA disagrees with the commenter's statement that EPA's
proposed action on the 2012 Five Percent Plan did not discuss or
analyze section 189(b)(1)(B) and 188(e) requirements for BACM and MSM.
Our proposed action on the 2012 Five Percent Plan explained that the
Maricopa County PM-10 nonattainment area was initially classified as
moderate, and, when it failed to reach attainment by the attainment
deadline for moderate areas, was reclassified, on May 10, 1996, as a
serious PM-10 nonattainment area with a new attainment deadline of
December 31, 2001. See 79 FR 7118-7119. Our proposed action on the 2012
Five Percent Plan also explained the criteria set forth in section
188(e) necessary to grant a five year extension of that deadline. In
addition, our proposed action on the 2012 Five Percent Plan included
the following statement: ``On July 25, 2002, EPA approved the serious
area PM-10 plan for the Maricopa PM-10 Nonattainment 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 approved the submission with respect to the
requirements of section 188(d) and granted Arizona's request to extend
the attainment date of the area to December 31, 2006.'' \4\ 79 FR 7119.
---------------------------------------------------------------------------
\4\ EPA's approval of BACM for this area and approval of the
extension under section 188(e) were upheld in Vigil v. Leavitt, 366
F.3d 1025, amended at 381 F.3d 826 (9th Cir. 2004).
---------------------------------------------------------------------------
We understand the comment to be more specifically directed at the
issue of whether our action on the 2012 Five Percent Plan requires EPA
to ``update'' or re-evaluate the BACM and MSM determinations we made
when we acted on the State's serious area plan and attainment deadline
extension request in 2002. EPA does not agree that the CAA requires
such a reevaluation in the context of acting on a state's submission of
a new plan to meet the requirements of section 189(d). We interpret CAA
section 189(b)(1)(B) to provide that the requirement for BACM is
triggered by a specific event: The reclassification of a moderate PM-10
nonattainment area to serious. Similarly, we interpret section CAA
188(e) to provide that the requirement for MSM is triggered by a
particular event: EPA's granting of a state's request for an extension
of the attainment deadline for a serious nonattainment area. If a
serious nonattainment area fails to reach attainment by the applicable
deadline, CAA section 189(d) requires the state to submit ``plan
revisions which provide for attainment of the PM-10 air quality
standard'' and ``for annual reduction in PM-10 . . . of not less than
[[Page 33109]]
5 percent . . .'' The Act, however, does not contain a specific
requirement that the state update the previously approved requirements
for BACM and MSM as a consequence of failing to reach attainment by the
applicable deadline for serious PM-10 nonattainment areas as an element
of the plan revision required by section 189(d).
Consistent with the Act's structure of requiring increasingly
stringent obligations as the severity of the air pollution problem
increases, we interpret sections 189(b)(1)(B) and 188(e), as well as
189(d), as parts of a statutory scheme that imposes increasingly more
stringent requirements when a PM-10 nonattainment area fails to reach
attainment by applicable deadlines. See Addendum to the General
Preamble, 59 FR 42010 (August 16, 1994). As stated previously, the
Maricopa County PM-10 Nonattainment Area was initially classified as
moderate. In 1996, when EPA determined that the Area failed to reach
attainment by the moderate area attainment deadline, EPA reclassified
the Area to serious. As a consequence of this reclassification, the
Maricopa County PM-10 Nonattainment Area was subject to a new
attainment deadline (December 31, 2001) as well as new requirements for
a serious PM-10 attainment plan pursuant to CAA section 188(c) and for
BACM pursuant to CAA section 189(b)(1)(B). Subsequently, the State's
request for an extension of the serious area attainment deadline
(December 31, 2006), and EPA's granting of that request in 2002,
resulted in an obligation for the State to demonstrate that its SIP
imposed MSM pursuant to section 188(e). In 2007, EPA's determination
that the Maricopa County PM-10 Nonattainment Area had failed to reach
attainment by the extended serious area deadline resulted in section
189(d)'s requirements for plan revisions and annual reductions in PM-10
of five percent until attainment. Thus, the CAA's requirements for BACM
and MSM are tied to specific triggers in the Act: BACM by the
reclassification to serious following the missed moderate area
deadline, and MSM by the extension of the serious area deadline. For
serious nonattainment areas that fail to reach attainment by an
applicable deadline, the CAA specifies a particular consequence: A
requirement for additional plan revisions that provide for attainment
and annual five percent reductions. There is no explicit requirement in
section 189(d) that a state with a serious nonattainment area that
misses its attainment deadline must also reevaluate BACM and MSM
provisions in its SIP that EPA has already approved. Indeed, the
requirements of section 189(d) do not specify the requisite level of
control and merely speak in terms of expeditious attainment and a set
percentage of annual reductions from the most recent inventory, without
regard to the level of control on sources needed to achieve those
objectives. We note further that the commenter did not provide a legal
rationale to support an interpretation of the Act that would require
the state to reevaluate the existing BACM and MSM in its SIP as part of
the explicit requirements of section 189(d). A state may elect to do
so, and may elect to do so as a means of achieving additional emissions
reductions to meet the five percent requirement, but that is not a
specific requirement of section 189(d).
EPA notes that it has other discretionary authority under the CAA
to address deficiencies in existing state SIPs, if that were necessary
to address substantive concerns like those raised by the commenter. If
EPA were to find a state SIP to be ``substantially inadequate'' to
attain or maintain a standard or to meet any other requirements of the
CAA, section 110(k)(5) provides a remedy by which EPA may require a
state to revise its SIP to correct the identified inadequacies. In such
a situation, EPA notifies a state of the inadequacies and can allow the
state up to 18 months to submit revisions to the SIP to address the
problems. See 42 U.S.C. 7410(k)(5). EPA has not made such a
determination with respect to BACM or MSM for the Maricopa County PM-10
Nonattainment Area.
Finally, we note that Arizona was able to demonstrate attainment of
the PM-10 NAAQS and provide for annual reductions of five percent until
attainment without requiring additional BACM and MSM measures in its
SIP.\5\ Given that this area has demonstrated that it attained the PM-
10 NAAQS by December 31, 2012 and has met the requirements of section
189(d), EPA does not see a need for the State to reevaluate its
existing BACM and MSM as part of the action on the 2012 Five Percent
Plan.
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\5\ See MAG 2012 Five Percent Plan, at p. 5-7, Table 5-3. Note
that the emissions from agricultural sources (``tilling, harvesting
and cotton ginning'' and ``windblown agriculture'') are constant,
reflecting no reductions in emissions from 2008 to 2012.
---------------------------------------------------------------------------
We address ACLPI's comments with respect to BACM and MSM as they
relate specifically to agricultural controls and exceptional events
below.
B. BACM for Agricultural Sources
Comment: ACLPI commented that EPA should not approve the 2012 Five
Percent Plan because it does not include adequate measures for
agricultural emissions. ACLPI commented that EPA has stated that ACC R
18-2-611 [Ag BMP Rule] no longer qualifies as BACM because other
nonattainment areas have stronger programs for controlling agricultural
emissions and do not have an enforceability issue found in the rule.
ACLPI also commented that the State's 2011 revisions to the Ag BMP Rule
to address concerns identified by EPA are still clearly insufficient to
qualify as BACM.
Response: As explained above, CAA section 189(d) does not require
the State to reevaluate the BACM and MSM determinations that were
addressed in its serious area PM-10 plan for the Maricopa County PM-10
Nonattainment Area.
In addition, the 2012 Five Percent Plan satisfied all requirements
for an approvable section 189(d) plan without relying on additional
emissions reductions from agricultural sources. The 2012 Five Percent
Plan is based on the ``2008 PM-10 Periodic Emissions Inventory for
Maricopa County, Revised 2011 (2008 Inventory),'' which EPA found to be
comprehensive, accurate and current. 79 FR 7120-7121. The 2008
Inventory shows that the most significant sources of emissions in the
Maricopa County Nonattainment Area are unpaved roads and alleys (21
percent), construction-related fugitive dust (17 percent), paved road
dust (17 percent) and windblown dust (9 percent). 79 FR 7120. Section
189(d) requires an approvable plan to show annual five percent
reductions in PM-10 or PM-10 precursors until attainment. The 2012 Five
Percent Plan was able to satisfy this criterion without assuming
additional reductions in agricultural emissions.\6\ Similarly, the 2012
Five Percent Plan demonstrated that the area would attain the standard
without additional reductions in agricultural emissions.\7\ Instead,
the 2012 Five Percent Plan predicts that decreases in emissions from
other categories, primarily construction and windblown dust from vacant
and open lands, would achieve the requisite 5 percent reductions.\8\
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\6\ Id.
\7\ See MAG 2012 Five Percent Plan, App. B, ``Technical Document
in Support of the MAG 2012 Five Percent Plan for PM-10 for the
Maricopa County Nonattainment Area,'' p. V-65.
\8\ Id. at p. III-2, Table III-1.
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Recent monitoring data support the attainment demonstration in the
2012
[[Page 33110]]
Five Percent Plan. 79 FR 7122. Finally, the State used no reductions in
agricultural emissions for contingency measures.\9\ Because the 2012
Five Percent Plan did not depend on additional emission reductions from
agricultural sources and because EPA finds that the State is not
required to reevaluate the BACM determinations we made in 2002 as part
of meeting the requirements of section 189(d), the content of the Ag
BMP rule does not determine the outcome of our action on the 2012 Five
Percent Plan.
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\9\ See MAG 2012 Five Percent Plan, at p. 6-39, Table 6-22.
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Nevertheless, EPA is continuing to work with ADEQ, Arizona
stakeholders and the Governor's Agricultural BMP Committee to improve
the Ag BMP rule. EPA anticipates that these improvements will be
particularly important for addressing PM-10 emissions in Pinal County,
a portion of which EPA re-designated as non-attainment in 2012. See 77
FR 32024 (May 31, 2012).
C. Dust Action General Permit
Comment: ACLPI commented that the 2012 Five Percent Plan relies on
an estimate that the Dust Action General Permit (DAGP) will increase
the rule effectiveness of Rule 310.01 by one percent, but argued that
it is not clear that the DAGP achieves any measurable reduction in
emissions. ACLPI stated that the structure of the DAGP means that its
scope is unclear and that there is no way to gauge that issuance of the
DAGP is actually impacting behavior in a way that reduces emissions.
ACLPI stated that compliance is only measured by instances of lack of
compliance discovered by inspectors who happen upon an owner or
operator of a regulated activity who is not implementing a BMP. ACLPI
stated that ADEQ has not yet issued a single Requirement to Operate
(``RTO''), which means that it is possible that sources not already
subject to permits have implemented BMPs as a result of the permit, but
it is equally plausible that BMPs are not being implemented and that
inspectors haven't discovered the violations, or that the universe of
potential permittees under the DAGP was so small that the adoption of
the permit had no practical effect whatsoever.
Response: The 2012 Five Percent Plan does not rely on assumptions
regarding compliance with the DAGP per se; rather, the 2012 Five
Percent Plan relies on an assumption that the DAGP will improve
compliance with Rule 310.01. As the 2012 Five Percent Plan explains,
``[e]missions reduction credit was taken for one new measure, the Dust
Action General Permit . . . This new measure is expected to raise rule
effectiveness for Rule 310.01 by one percent during high wind hours . .
.'' \10\ This statement is consistent with Table 5-1 of the MAG 2012
Five Percent Plan, ``Impact of Increased Rule Effectiveness on 2008-
2012 PM-10 Emissions,'' which shows that ADEQ estimated that the rule
effectiveness for the category ``windblown vacant, open, test tracts,''
(the category of sources subject to Rule 310.01), would increase from
96% in 2010-2011 to 97% in 2012.\11\ Table 5-1 associates this improved
rate of compliance with an annual reduction in PM-10 emissions of 149
tons per year.\12\
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\10\ MAG 2012 Five Percent Plan, p. ES-10 (emphasis added). See
also, MAG 2012 Five Percent Plan at p. 6-45; App. B, ``Technical
Document in Support of the MAG 2012 Five Percent Plan for PM-10 for
the Maricopa County Nonattainment Area,'' ppg. III-1 to III-8.
\11\ MAG 2012 Five Percent Plan at p. 5-3, Table 5-1.
\12\ Id.
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The Maricopa County Air Quality Department's (MCAQD) compliance
data for calendar year 2012 support the 2012 Five Percent Plan's
assumptions that the DAGP will improve compliance with Rule 310.01.
MCAQD reviewed its records of inspections during calendar year 2012, as
documented in ``Evaluation of Innovative Control Measures and Existing
Maricopa County Control Measures Contained in the MAG 2012 Five Percent
Plan for PM-10 for the Maricopa County Nonattainment Area, revised,''
Maricopa County Air Quality Department, June 6, 2013 (2013 Evaluation
Report).\13\ It found that, out of a total of 5,431 sites inspected for
compliance with Rule 310.01 in 2012, 149 citations were issued--
amounting to a rule effectiveness rate of 97.62 percent. 2013
Evaluation Report at pages 3-4. This amount exceeds the compliance rate
of 96% associated with previous years. MAG 2012 Five Percent Plan at p.
5-3, Table 5-1. EPA acknowledges that estimating rule compliance
requires reliance on compliance information collected by reliable
means. In this instance, EPA believes that the information gathered
through the MCAQD's inspections program provides information to support
the conclusion that most affected sources are complying with the
requirements of Rule 310.01, and that compliance improved in 2012 as a
result of those inspections.
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\13\ MCAQD has committed to conducting this evaluation on a
triennial basis. MAG 2012 Five Percent Plan, App. C, Exhibit 2,
``Maricopa County Resolution to Evaluate Measures in the MAG 2012
Five Percent Plan for the Maricopa County Nonattainment Area.''
---------------------------------------------------------------------------
The 2012 Five Percent Plan further describes the connection between
Rule 310.01 and the DAGP.\14\ The Plan explains that the DAGP is
expected to increase compliance with Rule 310.01 because, whenever ADEQ
issues a forecast of a high wind dust event, sources subject to Rule
310.01 (primarily open areas, vacant lots, and unpaved parking areas
and roadways),\15\ will take additional measures to stabilize open
areas and unpaved surfaces by implementing the best management
practices (BMPs) specified in Rule 310.01 and the DAGP.\16\ Such
measures might include restricting access to open areas and vacant
lots, or by applying dust suppressants and/or maintaining surface
gravel.\17\ As specified in the DAGP, sources that fail to choose or
implement a BMP when ADEQ issues a forecast of a high wind dust event
may trigger applicability of the DAGP and the additional requirements
it imposes.\18\ Thus, the existence of the DAGP enhances compliance
with Rule 310.01 because sources subject to Rule 310.01 associate
noncompliance with Rule 310.01 with an adverse consequence--
specifically, the obligation to apply for and comply with the DAGP.
Again, MCAQD's study of the compliance rate of Rule 310.01 supports
this assumption in the 2012 Five Percent Plan.
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\14\ See MAG 2012 Five Percent Plan, p. ES-10; p. 5-3, Table 5-
1; p. 6-45. See also MAG 2012 Five Percent Plan, App. B, ``Technical
Document in Support of the MAG 2012 Five Percent Plan for PM-10 for
the Maricopa County Nonattainment Area,'' ppg. III-1 to III-8. The
relationship between Rule 310.01 and the DAGP is also described in
ADEQ's comments on our proposed action, Letter from Eric C. Massey,
Director, Air Quality Division, ADEQ to Greg Nudd, US EPA, dated
March 10, 2014.
\15\ See Rule 310.01, section 102; 2012 Five Percent Plan at ES-
7 to ES-10.
\16\ MAG 2012 Five Percent Plan at ES-10.
\17\ See DAGP, Attachment C, ``Best Management Practice
Examples''; Rule 310.01, sections 301-307.
\18\ DAGP, section V.
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D. Exceptional Events--General
Comment: ACLPI stated that it was unable to reconcile some of the
numbers of exceptional events cited by EPA. The commenter stated that
the subtotals in EPA's concurrence letters add up to 131, but the
subtotals in the tables in the supporting documentation add up to 135.
The commenter added that if sites with double monitors are counted as
only one exceedance, the total number of exceedances is 127.
Response: EPA acknowledges the discrepancy between the number of
exceedances in concurrence letters and the tables in the TSDs. After
closely re-
[[Page 33111]]
reviewing the data, EPA has determined that the total number of
exceptional events addressed by our concurrence letters dated September
6, 2012, May 6, 2013, and July 1, 2013 should be 135 exceedances.\19\
These 135 exceptional event exceedances occurred on 25 days over the
three year period, 2010-2012.
---------------------------------------------------------------------------
\19\ See spreadsheet entitled ``EPA Exceptional Event
Concurrence Sheet,'' included in the docket for this rule.
---------------------------------------------------------------------------
Comment: ACLPI commented that EPA's exclusion of such a large
number of frequent and severe exceedances is unconscionable and
misrepresents the extent of the particulate pollution in the Area. The
commenter stated that the reported exceedances are ``frequent'' and
``severe'' within the meaning of EPA guidance, specifically, EPA's
Interim Guidance on the Preparation of Demonstrations in Support of
Requests to Exclude Ambient Air Quality Data Affected by High Winds
Under the Exceptional Events Rule, May 2013 (Interim Guidance).
Response: We note that the 135 exceptional event exceedances
occurred on 25 days over a three year period from 2010 to 2012. The
determinations reflected in our concurrence letters and TSDs dated
September 6, 2012, May 6, 2013 and July 1, 2013 are consistent with the
EER and our Interim Guidance. We considered a range of relevant factors
including whether anthropogenic sources had reasonable controls in
place, meteorological data such as wind speed and direction, and the
spatial extent of the events. The frequency and severity of the events
were considered as part of this analysis, and although we agree that
some of the excluded exceedances could meet the criteria for
``frequent'' and ``severe'' suggested in our Interim Guidance, that
fact alone does not disqualify an exceedance from consideration as an
exceptional event. See Interim Guidance at 12-13 (frequency and
severity of past exceedances may be a factor considered in determining
the reasonableness of controls). Also, the Interim Guidance
acknowledges that events do not necessarily have to be rare to qualify
as exceptional events. See Interim Guidance at 3 and 20.
Comment: ACLPI commented that EPA's analysis of whether the events
are reasonably preventable or controllable should have been more
probing and not a ``cookie cutter'' approach, given the frequency and
severity of the exceedances, as well as the area's status as serious
nonattainment and the State's previous withdrawal of its earlier Five
Percent Plan.
Response: The State submitted documentation on March 14, 2012,
January 28, 2013, and February 13, 2013 to demonstrate to EPA that
exceedances of the PM-10 NAAQS on various dates in 2011 and 2012 meet
the criteria for an exceptional event in the EER. The State's
submittals comprise over 1750 pages of documentation of the facts
supporting each of the identified exceptional events. Our TSDs
accompanying our concurrence letters dated September 6, 2012, May 6,
2013, and July 1, 2013 reflect EPA's methodical and systematic review
of the State's documentation of the events and EPA's technical
expertise and judgment. EPA presented its conclusions in a standardized
format that was appropriate, considering the volume of information
presented and reviewed, as well as the purpose of informing the public.
In addition, EPA notes that we also received several comments in this
rulemaking regarding the process required to document exceedances as
``exceptional events'' contending that the level of resources required
to prepare and submit such documentation to EPA was too onerous.
Comment: ACLPI commented that the events excluded by EPA were
predictable and seasonal in nature and could be ameliorated if the
State adopted appropriate control measures for windblown dust both in
the attainment (sic) area and statewide.
Response: For each of the events that EPA concurred with, EPA found
that the event was not reasonably controllable or preventable (nRCP).
EPA's Interim Guidance states that, for anthropogenic sources of dust,
``a high wind dust event may . . . be considered to be not reasonably
controllable or preventable if: (1) The anthropogenic sources of dust
have reasonable controls in place; (2) the reasonable controls have
been effectively implemented and enforced; and (3) the wind speed was
high enough to overwhelm the reasonable controls.'' See Interim
Guidance at 10.
EPA's determinations of nRCP were primarily based on consideration
of the control requirements based on the Area's serious nonattainment
classification for the PM-10 NAAQS. See Interim Guidance at 13. ADEQ
provided detailed information of required controls (including BACM-
level controls for significant sources previously approved by EPA for
this area), as well as information on rule implementation, rule
effectiveness, compliance and enforcement, alert systems and public
notification activities. A typical example is the documentation ADEQ
submitted in connection with the event that occurred on August 11,
2012. State of Arizona, Exceptional Event Documentation for the Event
of August 11, 2012 for the Phoenix PM-10 Nonattainment Area, February
2013 (AZ EE Documentation for August 11, 2012). This submittal included
a list of control measures regulating sources of dust in Maricopa and
Pinal counties, information about rule effectiveness, and data
regarding compliance and enforcement. See AZ EE Documentation for
August 11, 2012, Section 5.
In addition, EPA's determinations of nRCP were based on ADEQ's
documentation of wind speeds. For example, the exceedances that
occurred on September 11 and 12, 2011 involved wind speeds of 20 miles
per hour (mph) and 25 mph, respectively. See e.g., EPA Letter dated
July 1, 2013, and accompanying TSD at p. 4. See also, e.g., TSD
discussion of June 16, 2012 event at p. 10 (sustained wind speeds of 29
mph-32 mph); TSD discussion of June 27, 2012 event at p. 15 (sustained
wind speeds of 31 mph-38 mph); TSD discussion of July 11, 2012 event at
p. 20 (sustained wind speeds of 20 mph-25 mph).\20\ Given the wind
speeds associated with each of the events that EPA concurred upon, EPA
believes ADEQ's controls assessment was appropriate and that the pre-
existing and previously approved BACM level controls are adequate for
meeting the requirement of ``reasonable controls'' for a PM-10 serious
nonattainment area.
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\20\ The commenter did not specify particular dates or
exceedances for which she found EPA's analysis deficient; therefore,
EPA's response provides just a few examples from our TSDs in which
we refer to the documentation of wind speeds included in the State's
submittals. We reiterate, however, that our review of the State's
submittals involved a methodical, case-by-case approach as
documented by each of the TSDs accompanying our concurrence letters
dated September 6, 2012, May 6, 2013 and July 1, 2013.
---------------------------------------------------------------------------
Additional information regarding EPA's consideration of reasonable
controls can be found in EPA's TSDs for each event.
E. Exceptional Events and Reasonable Controls
Comment: ACLPI commented that BACM level controls were not in place
in the nonattainment area. ACLPI commented that EPA's Interim Guidance
says that BACM measures may be insufficient if the SIP has not been
recently reviewed and that EPA has indicated that it will consider
windblown dust BACM to be reasonable controls for purposes of
exceptional events claims if the measures have been reviewed and
approved in the context of a SIP revision within the past three years
and if the measures are specific to
[[Page 33112]]
windblown dust. ACLPI commented that EPA's proposed action departs from
this guidance because EPA last approved BACM for the area in 2002, with
a supplemental analysis in 2006.
Response: EPA's Interim Guidance states: ``Generally, the EPA will
consider windblown dust BACM to constitute reasonable controls if these
measures have been reviewed and approved in the context of a SIP
revision for the emission source area within the past three years.''
Interim Guidance at 15. Although our BACM determinations were made
outside this recommended time frame, we believe that our determinations
regarding nRCP were correct. First, the 2012 Five Percent Plan shows
that the significant stationary source categories for PM-10 are:
construction; unpaved roads and alleys; paved road dust; windblown dust
(non-agriculture); unpaved parking lots; and off-road recreational
vehicles.\21\ Each of these source categories was included in our
earlier BACM determinations. See 67 FR 48718 (July 25, 2002); see also,
67 FR 48733-34. Because the significant sources within the Phoenix PM-
10 nonattainment area have not significantly changed since 2002, and
the range of potential measures for controlling emissions from these
source categories (e.g., stabilization of disturbed surface areas;
spray bars to apply water or dust suppressants; track out, rumble grate
and wheel washer requirements) have not significantly changed since
2002, we believe that our previous BACM determinations remain
appropriate for the purposes of making exceptional event
determinations, including determinations regarding nRCP.
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\21\ MAG 2012 Five Percent Plan, at -. 5-7, Table 5-3.
---------------------------------------------------------------------------
Second, although the State has not prepared a new BACM analysis and
EPA has not made new BACM determinations in the past three years,
Arizona has adopted revisions to rules regulating sources of windblown
dust that EPA has approved into the SIP because they are more
stringent. Specifically, EPA has approved updated revisions of: Rule
310, which regulates sources of fugitive dust from dust generating
operations such as construction; Rule 310.01, which regulates sources
of windblown dust from open areas, vacant lots, unpaved parking lots,
and unpaved roadways; and Rule 316, which regulates sources of dust
from nonmetallic mineral processing.\22\
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\22\ See 74 FR 58554 (November 13, 2009) (EPA approval of
Maricopa County's revisions to Rule 316, adopted on March 12, 2008);
75 FR 78167 (December 15, 2010) (EPA approval of Maricopa County's
revisions to Rule 310 and 310.01, adopted on January 27, 2010).
---------------------------------------------------------------------------
Third, to the extent the commenter interprets the Interim Guidance
as stating that a BACM determination that is older than three years
cannot be relied upon in a demonstration of reasonable controls, the
commenter is incorrect. The Interim Guidance provides a guideline to
states preparing documentation to submit to EPA that more recent BACM
determinations will generally satisfy EPA's consideration of reasonable
controls. It does not disqualify measures that EPA determined to be
BACM more than three years previously from consideration as reasonable
controls, nor does it impose an obligation on the part of the state or
EPA to re-evaluate BACM.
Comment: ACLPI commented that EPA found that the 2007 Maricopa BMP
Rule no longer represents BACM for agricultural emissions (referencing
statements in a 2010 proposed rulemaking and in a 2010 letter to the
Arizona Agricultural Best Management Practices (BMP) Committee) and
that although the 2007 Maricopa BMP Rule was revised in 2011, the
revisions were not implemented until March 2012. The commenter states
that 98 of the 217 exceedances at issue occurred in 2011 (i.e., prior
to the implementation of the 2011 Maricopa BMP Rule revisions). The
commenter argued that even into 2012, the ``revised Maricopa BMP Rule''
(which EPA understands to be a reference to the 2011 Maricopa BMP Rule)
is not clearly BACM because it did not include EPA's recommendations
for improvement. The commenter concludes that EPA's concurrence on
exceptional events was erroneous because EPA relied on its prior
approval of the State's previous BACM demonstration and did not attempt
to determine whether the controls in place during the event were BACM.
Response: Our response above explains why the CAA does not require
EPA to reevaluate its earlier BACM determination in connection with our
action on the 2012 Five Percent Plan. We understand the commenter to be
asserting another basis for EPA to reevaluate BACM, in particular, that
EPA's concurrence on exceptional events may be a basis to require EPA
to make a determination regarding BACM. EPA's Interim Guidance,
however, states that BACM for windblown dust is a measure that EPA has
identified as being ``reasonable'' for the purposes of exceptional
events determinations. Interim Guidance at 15. The Interim Guidance
acknowledges that ``[h]aving BACM/RACM in place during the time of the
event is an important consideration'' for an exceptional event
determination, but more justification may be necessary if, for example,
the measures are not related to windblown dust, or if the SIP has not
been recently reviewed. Id. For the reasons set forth below, EPA's
reliance on the BACM determinations it made in 2002 was a reasonable
basis to concur on the State's exceptional event claims.\23\
---------------------------------------------------------------------------
\23\ EPA notes that it applies a weight-of-the-evidence standard
in evaluating exceptional events claims. See e.g., Interim Guidance
at 8: ``The EPA uses a weight-of-the-evidence approach in reviewing
air agency requests for data exclusion under the EER [Exceptional
Events Rule]. Evidence and narrative that constitute a strong
demonstration for one element can also be part of the demonstration
for another element, but cannot make up for the absence of or
insufficient explanation supporting another element. A strong
demonstration for one requirement could, however, influence the
persuasiveness of the demonstration for another.''
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First, the 2008 Inventory shows that agricultural sources are a
very small contributor to windblown dust in Maricopa County. According
to the 2008 Inventory, agricultural windblown dust comprises
approximately 0.9% of the total annual windblown dust emissions in the
nonattainment area (448 tons out of a total of 49,673.01 tons in
2012).\24\ Other agricultural sources, such as tilling, harvesting, and
cotton ginning, comprise approximately 1.8% of the total annual PM-10
emissions inventory (893 tons out of a total of 49,673.01 tons in
2012).\25\ Thus, agricultural sources contribute only a relatively
small percentage of the total emissions in the 2008 Inventory.
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\24\ Id. at p. II-3, Table II-2; see also, MAG 2012 Five Percent
Plan at p. 5-5, Table 5-2.
\25\ Id.
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Second, in determining that the exceedances that occurred in 2011
and 2012 were nRCP, it was appropriate for EPA to find that the
existing controls were ``reasonable'' because, as we explained above,
the State met the requirements of section 189(d) in the 2012 Five
Percent Plan without relying on additional reductions from agricultural
sources. Significantly, no additional reductions from the Maricopa BMP
Rule were needed to demonstrate that the area would attain the
standard.\26\ Therefore, our determination that existing BACM
requirements were sufficient to find that emissions sources were
reasonably controlled at the time the exceedances occurred was
appropriate.
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\26\ See MAG 2012 Five Percent Plan, at p. 5-7, Table 5-3.
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Third, we acknowledge that EPA has previously indicated to the
State that
[[Page 33113]]
improvements to controls on agricultural sources should be considered.
It is important to note, however, that EPA's proposed 2010 rulemaking
was a proposed action to disapprove a different section 189(d) plan,
the State's 2007 Five Percent Plan, in part because of EPA's concerns
regarding the accuracy of the State's 2005 Periodic Emission Inventory.
(We also note that the proposed rulemaking was never finalized.) It is
also important to note that EPA's comments to the Ag BMP Committee
predate the finalization of the 2008 Emission Inventory (May 2012) in
which emissions from agricultural sources are a small part of the PM-10
emissions inventory. Further, although the 2008 Inventory indicates
that agricultural sources are relatively small contributors to PM-10
emissions in the Maricopa County PM-10 Nonattainment Area, EPA believes
that agriculture is a significant source in certain portions of Pinal
County, which EPA recently redesignated as a PM-10 nonattainment area.
See 77 FR 32024 (May 31, 2012). Therefore, EPA believes that it is
important to continue to improve the controls on agricultural sources,
and EPA is working with ADEQ, stakeholders, and the Governor's
Agricultural BMP Committee to improve these controls.
Comment: ACLPI commented that ADEQ and EPA did not adequately
address the issue of whether the events were reasonably controllable or
preventable with respect to sources outside the Maricopa County PM-10
Nonattainment Area. ACLPI stated that EPA's Interim Guidance says that
a basic controls analysis should consider all upwind areas of disturbed
soil to be potential contributing sources, and that the basic controls
analysis should identify all contributing sources in upwind areas and
provide evidence that such sources were reasonably controlled, whether
anthropogenic or natural, and include inspection reports and/or notices
of violation, if available. The commenter stated that ADEQ and EPA did
not indicate that control measures outside of Maricopa County were
evaluated for their ``reasonableness.'' ACLPI commented that Pinal
County's controls are ``minimalist rules'' that do not require controls
to address emissions caused solely by high wind events and that
although Pinal County was only recently designated nonattainment, Pinal
County should not be excused from the requirement to show that sources
in the county were subject to reasonable controls.
Response: The comment concerns the level of controls imposed on
sources outside the Maricopa County PM-10 Nonattainment Area, in
particular, sources located in Pinal County. As noted in our proposed
action, the Maricopa County PM-10 Nonattainment Area encompasses
several cities within Maricopa County (including the cities of Phoenix,
Mesa, Scottsdale, Tempe, Chandler, and Glendale), and several other
smaller jurisdictions and unincorporated county lands. The Maricopa
County PM-10 Nonattainment Area also includes the town of Apache
Junction in Pinal County. Recently, EPA designated a portion of Pinal
County (``West Pinal'') as a moderate PM-10 nonattainment area, which
triggered nonattainment planning obligations that the State must
fulfill. See 77 FR 32024 (May 31, 2012).\27\
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\27\ We note that our action on the 2012 Five Percent Plan
relates to our concurrences with the State's exceptional event
claims for exceedances at monitors for the Maricopa County PM-10
Nonattainment Area dated September 6, 2012, May 6, 2013, and July 1,
2013. Our action on the 2012 Five Percent Plan does not depend on
data from monitors located within the newly redesignated West Pinal
PM-10 Nonattainment Area or on any exceptional events claims
regarding data from such monitors.
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EPA's Interim Guidance contemplates that a basic controls analysis
should include ``a brief description'' of upwind sources. The level of
detail provided in describing the Pinal County sources was adequate
given relevant factors such as wind speed. Moreover, ADEQ and EPA both
indicated that they evaluated control measures outside of Maricopa
County. For example, ADEQ's exceptional event documentation included an
analysis of reasonable controls that identified measures that apply to
sources located within the Maricopa County PM-10 Nonattainment Area,
and measures applicable to sources in Pinal County, outside the
Maricopa County PM-10 Nonattainment Area.\28\ ADEQ specifically
identified two Pinal County rules, Article 2, Fugitive Dust, and
Article 3, Construction Sites--Fugitive Dust, as regulatory control
measures.\29\ EPA's TSDs also referenced this section of ADEQ's
documentation, including the discussion of rules applicable to sources
in Pinal County.\30\
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\28\ See e.g., ADEQ EE Documentation for July 3-8, 2011 at 39-
45; in particular, ppg. 40-41, Tables 4-1 and 4-3 (sources within
the Maricopa PM-10 Nonattainment Area) and Table 4-2 (sources
outside the Maricopa PM-10 Nonattainment Area).
\29\ Id. at 41, Table 4-2.
\30\ See e.g., EPA Letter dated Sept. 9, 2012 and accompanying
TSD at 3.
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In addition, the level of detail describing Pinal County sources
and controls was also adequate for an area such as Pinal County for
which a portion was recently redesignated as a PM-10 nonattainment area
and is currently undergoing the nonattainment planning process. As
EPA's Interim Guidance states, an area's attainment status is an
appropriate guideline for assessing the reasonableness of controls:
``Generally, the EPA does not expect areas classified as attainment,
unclassifiable, or maintenance for a NAAQS to have the same level of
controls as areas that are nonattainment for the same NAAQS. Also, if
an area has been recently designated to nonattainment but has not yet
been required to implement controls, the EPA will expect the level of
controls that is appropriate for the planning stage.'' Interim Guidance
at 15. EPA's recent redesignation of a portion of Pinal County as a
moderate PM-10 nonattainment area triggered CAA planning obligations
for the State to develop regulations to implement controls such as
Reasonably Available Control Measures (RACM) for existing sources of
PM-10 and a section 173 preconstruction permitting program for new and
modified sources of PM-10. EPA concurred with exceedances that occurred
in 2011 and 2012; the latest exceedance occurred on September 6, 2012,
well before the CAA's deadline for Arizona to submit an implementation
plan to EPA for approval into the Arizona SIP. See 77 FR 32030.
Comment: ACLPI commented that claims that events were caused by
``winds transporting dust from desert areas of Pima and Pinal
Counties'' are not substantiated and that the State's demonstrations do
not determine source locations, as required by EPA's 2013 Interim
Guidance (referencing 3.1.5.1). ACLPI conducted its own analysis of the
event that occurred on July 18, 2011. ACLPI commented that its analysis
indicates that dust sources included agricultural sources in Pinal and
Maricopa Counties, and that four downdrafts and four outflows impacted
the monitors from multiple locations, in contrast to the State's
assertion that one thunderstorm outflow transported dust from desert
portions of Pinal and Pima counties into the Phoenix PM-10
nonattainment area. ACLPI stated that although the State claims that
specific source areas are difficult to determine because of the less
dense monitoring network in the general source area, ACLPI's analysis
shows that likely source locations can be determined using
meteorological modeling and observational data. Therefore, EPA should
require the state to make a more concerted effort to identify the
actual sources and adopt controls to avoid or ameliorate future events.
[[Page 33114]]
Response: Although a more refined analysis of the location of
thunderstorm downdrafts and source areas is potentially helpful for
certain high wind dust events, this additional analysis is not
necessary to analyze the specific events that EPA concurred on. EPA
reviewed the commenter's analysis and concluded that it does not
contradict ADEQ's documentation, but rather corroborates the evidence
presented in ADEQ's demonstration. ADEQ's documentation states that the
contributing source regions were somewhat widespread, but that the
``majority'' of the PM that was transported into Maricopa County likely
originated from areas within Pinal County to the south and southeast of
Maricopa County.\31\ ADEQ also explained that it is likely that some
dust was generated within the Maricopa County PM-10 Nonattainment Area
as gusts from the thunderstorm outflows passed through the area.\32\
Thus, ADEQ did not claim that all the emissions were specifically
caused by a single thunderstorm outflow. ADEQ's statement that the
``majority'' of the emissions were transported from areas of Pinal
County and southeast Maricopa County is supported by the visualization
of images from the Phoenix visibility camera included in the July 18,
2011 demonstration, which shows a large dust storm approaching from the
south of the Maricopa County PM-10 Nonattainment Area.\33\
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\31\ State of Arizona Exceptional Event Documentation for the
Event of July 18, 2011, for the Phoenix PM-10 Nonattainment Area,
Jan. 23, 2013 at p. 9.
\32\ Id. at 18.
\33\ Id. at 27.
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Comment: ACLPI commented that the fact that some of the sources are
located outside of the Maricopa County PM-10 Nonattainment Area does
not absolve the State of its responsibility to ensure that they are
reasonably controlled. The commenter stated that ADEQ is the single
responsible actor for air quality control in Arizona and had the
responsibility to address the public health risk presented by sources
in Pinal County, particularly given high wind events experienced in
2008 and 2009.
Response: EPA agrees that the State has a responsibility to ensure
that sources outside the Maricopa County PM-10 Nonattainment Area are
reasonably controlled. Our action with respect to exceedances at
Maricopa County PM-10 Nonattainment Area monitors does not absolve in
any way the State's responsibility to address PM-10 emissions in the
West Pinal PM-10 Nonattainment Area. Our July 2012 redesignation of
West Pinal to nonattainment triggers Clean Air Act nonattainment
planning obligations that Arizona must fulfill. See 77 FR 32030. We
note that our action on the 2012 Five Percent Plan relates to our
concurrences with the State's exceptional event claims for exceedances
at monitors for the Maricopa County PM-10 Nonattainment Area dated
September 6, 2012, May 6, 2013, and July 1, 2013, and does not depend
on the treatment of data for monitors located within the newly
redesignated West Pinal PM-10 Nonattainment Area.
F. Exceedances in 2013
Comment: ACLPI commented that the Maricopa County PM-10
Nonattainment Area experienced 30 exceedances over six days in 2013,
which ADEQ has flagged and for which ADEQ is preparing EE
documentation, and that EPA is simply assuming that it will concur with
these EE demonstrations. The commenter stated that this is
unsupportable, particularly in light of EPA's failure to require
mitigation measures and that there are frequent and severe violations
of the standard at multiple monitors, many of which are located in low
income neighborhoods.
Response: The 2012 Five Percent Plan was based on a projection that
that the Area would attain the NAAQS in 2012. If, upon review of the
available evidence, EPA finds that the exceedances of the standard in
2013 constitute a new violation of the PM-10 NAAQS, we have the
authority to require the state to submit a SIP revision with additional
controls and a demonstration that the new controls will bring the area
back into attainment with the standard.\34\
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\34\ E.g., under CAA section 110(k)(5) EPA may require a state
to revise its SIP if we find it to be substantially inadequate to
maintain the relevant air quality standard. In such a situation, EPA
notifies a state of the inadequacies and can allow the state up to
18 months to submit revisions to the SIP to address the problems.
See 42 U.S.C. 7410(k)(5).
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G. Contingency Measures
Comment: ACLPI stated that EPA's proposal acknowledges that the
contingency measures in the 2012 Five Percent Plan are already being
implemented. The commenter stated that CAA (175(d)) envisions
additional measures that are automatically and immediately implemented
if a milestone for reasonable further progress or attainment is not
met. The commenter stated that if contingency measures are already
being implemented when a milestone is missed, continued implementation
will not ensure that the situation will be corrected. The commenter
argues that LEAN v. EPA is not binding on the 9th Cir. and is contrary
to the plain language of the CAA. The commenter stated that approval of
the 2012 Five Percent Plan without meaningful and appropriate
contingency measures is contrary to law.
Response: EPA disagrees with the comment. Contingency measures must
provide for additional emission reductions that are not relied on for
RFP or attainment and that are not included in the attainment
demonstration. Nothing in the statute precludes a state from
implementing such measures before they are triggered. See, e.g., LEAN
v. EPA, 382 F.3d 575 (5th Cir. 2004) (upholding contingency measures
that were previously required and implemented where they were in excess
of the attainment demonstration and RFP SIP).
EPA has approved numerous SIPs under this interpretation--i.e.,
SIPs that use as contingency measures one or more Federal or local
measures that are in place and provide reductions that are in excess of
the reductions required by the attainment demonstration or RFP plan.
See, e.g., 62 FR 15844 (April 3, 1997) (direct final rule approving an
Indiana ozone SIP revision); 62 FR 66279 (December 18, 1997) (final
rule approving an Illinois ozone SIP revision); 66 FR 30811 (June 8,
2001) (direct final rule approving a Rhode Island ozone SIP revision);
66 FR 586 (January 3, 2001) (final rule approving District of Columbia,
Maryland, and Virginia ozone SIP revisions); and 66 FR 634 (January 3,
2001) (final rule approving a Connecticut ozone SIP revision).
The scenario described by the commenter that already-implemented
contingency measures will be a problem if the Maricopa County PM-10
Nonattainment Area misses a deadline for RFP or attainment is mitigated
by the fact that monitoring data for 2010-2012 show that the Area
already attained the 24-hour PM-10 NAAQS as of December 12, 2012. See
79 FR 7122. Our approval of the contingency measures is also consistent
with EPA guidance that ``the potential nature and extent of any
attainment shortfall for the area'' is relevant to the determining the
level of required emission reductions and that contingency measures
``should represent a portion of the actual emission reductions
necessary to bring about attainment in area.'' 72 FR 20586, 20643; see
also PM-10 Addendum at 42015 (the emission reductions anticipated by
the contingency measures should be equal to approximately one-year's
worth of
[[Page 33115]]
emission reductions needed to achieve RFP for the area.) EPA's approval
of contingency measures that are already being implemented is
particularly appropriate where, as is the case for the Maricopa County
PM-10 Nonattainment Area, there are no future RFP or attainment
deadlines.
H. Other Comments
Comment: ADEQ asked that EPA clarify that this action applies to
the entire nonattainment area, including the portion in Pinal County,
and not just to the Maricopa County portion.
Response: EPA has made this clarification.
Comment: Several commenters noted that the plan was developed
through a cooperative discussion among the many stakeholders in the
plan. According to the commenters, this process led to innovative
strategies that are appropriate to the local conditions and consistent
with EPA requirements.
Response: EPA acknowledges these comments.
Comment: Several commenters expressed concerns about the resources
required to demonstrate that measured exceedances of the standard are
due to exceptional events. These commenters recommended changing the
Exceptional Events Rule to address this issue.
Response: EPA will consider these comments in future rulemakings on
the Exceptional Events Rule.
III. EPA's Final Action
As a result of our proposed rule and our response to comments
above, we are finalizing our proposal to approve the 2012 Five Percent
Plan as meeting the requirements of the CAA for the Maricopa County PM-
10 nonattainment area. Specifically, we are approving:
(A) The 2008 baseline emissions inventory and the 2007, 2009, 2010,
2011 and 2012 projected emission inventories as meeting the
requirements of CAA section 172(c)(3);
(B) the attainment demonstration as meeting the requirements of CAA
sections 189(d) and 179(d)(3);
(C) the five percent demonstration as meeting the requirements of
CAA section 189(d);
(D) the reasonable further progress and quantitative milestone
demonstrations as meeting the requirements of CAA sections 172(c)(2)
and 189(d);
(E) the contingency measures as meeting the requirements of CAA
section 172(c)(9); and
(F) the motor vehicle emissions budget as compliant with the budget
adequacy requirements of 40 CFR 93.118(e).
IV. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve State choices,
provided that they meet the criteria of the Clean Air Act. Accordingly,
this action merely approves State law as meeting Federal requirements
and does not impose additional requirements beyond those imposed by
State law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act(5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because it does not apply in Indian country located in the State, and
EPA notes that it will not impose substantial direct costs on tribal
governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by August 11, 2014. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements (see section 307(b)(2)).
List of Subjects in 40 CFR Part 52
40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Incorporation by reference, Particulate matter, Reporting
and recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 30, 2014.
Jared Blumenfeld,
Regional Administrator, Region IX.
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart D--Arizona
0
2. Section 52.120 is amended by adding paragraphs (c)(157)(ii)(A)(1)
and (2) to read as follows:
Sec. 52.120 Identification of plan.
* * * * *
[[Page 33116]]
(c) * * *
(157) * * *
(i) * * *
(ii) Additional materials.
(A) Arizona Department of Environmental Quality.
(1) 2012 Five Percent Plan for PM-10 for the Maricopa County
Nonattainment Area, and Appendices Volume One and Volume Two, adopted
May 23, 2012.
(2) 2012 Five Percent Plan for PM-10 for the Pinal County Township
1 North, Range 8 East Nonattainment Area, adopted May 25, 2012.
* * * * *
[FR Doc. 2014-13495 Filed 6-9-14; 8:45 am]
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