Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Arizona

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is approving the Maricopa Association of Governments (MAG) serious area carbon monoxide (CO) state implementation plan (SIP) for the Maricopa County CO nonattainment area, also referred to as “the metropolitan Phoenix area”, as meeting the Clean Air Act (CAA) requirements for serious CO nonattainment areas. We are also approving the MAG CO Redesignation Request and Maintenance Plan for the Maricopa County CO nonattainment area as meeting CAA requirements for redesignation requests and maintenance plans. In addition, we are making a boundary change under Section 107 of the CAA to take the Gila River Indian Community (GRIC) out of the Maricopa County maintenance area. The portion of the Gila River Indian Community which is currently in the Maricopa County CO nonattainment area will be “unclassifiable/attainment” for CO, and will not be subject to the MAG CO Redesignation Request and Maintenance Plan.

DATE:

Effective Date: This rule is effective April 8, 2005.

ADDRESSES:

Copies of the documents relevant to this action are available for public inspection during normal business hours at EPA Region 9's Air Planning Office (AIR-2), 75 Hawthorne Street, San Francisco, CA 94105-3901. Due to increased security, we suggest that you call at least 24 hours prior to visiting the Regional Office so that we can make arrangements to have someone meet you.

Electronic Availability

This document, our proposed rule which was published in the Federal Register on October 8, 2004, and the technical support document (TSD) are also available as electronic files on EPA's Region 9 Web page at http://www.epa.gov/region09/air/phxco/index.html.

FOR FURTHER INFORMATION CONTACT:

Wienke Tax, Office of Air Planning, U.S. Environmental Protection Agency, Region 9, (520) 622-1622, e-mail: tax.wienke@epa.gov, or refer to http://www.epa.gov/region09/air/phxco/index.html.

SUPPLEMENTARY INFORMATION:

Throughout this document, the terms “we,” “us,” and “our” mean U.S. EPA.

Table of Contents

I. Summary of EPA's Final Action

II. Response to Comments

III. EPA's Final Action

IV. Statutory and Executive Order Reviews

I. Summary of EPA's Final Action

On October 8, 2004 (69 FR 60328), we published a notice of proposed rulemaking for the State of Arizona. The notice proposed approval of revisions to the SIP for the Maricopa County CO nonattainment area. These revisions to the SIP were adopted by the Arizona Department of Environmental Quality (ADEQ). Today, we are finalizing our proposal to approve the MAG serious area SIP for attainment of the CO air quality standard in the Maricopa County area. This action is based on our determination that this SIP complies with the CAA's requirements for attaining the CO standard in serious CO nonattainment areas such as the metropolitan Phoenix area.

We are also approving the MAG CO Redesignation Request and Maintenance Plan for the Maricopa County CO nonattainment area as meeting CAA requirements for redesignation requests and maintenance plans.

We are also making a boundary correction under Section 107 of the CAA for the Gila River Indian Community.

II. Response to Comments

We received three comments (two via electronic mail (e-mail) and one written letter) during the official comment period for the October 8, 2004, proposal. Two comments were dated October 19, 2004, and one comment was dated November 8, 2004. In addition to these comments, we received three e-mails submitted after signature but prior to publication of the proposal in the Federal Register, two on September 22 and one on September 24, 2004. Since these e-mails raise the same issues as the comments submitted after publication, we discuss and respond to all of them below. The September 24, 2004, e-mail was submitted directly to EPA Administrator Michael Leavitt's office and was referred to EPA Region 9 for a response. We determined that the correspondence should be treated as public comment, and respond to it here. (This commentor also sent comments directly to Region 9 on September 22 and 24, 2004). We also received a letter of support from ADEQ regarding the boundary change for the Gila River Indian Community. We respond to the comments below in the order we received them.

E-Mails Submitted to EPA Prior to the Public Comment Period

We received three e-mails before the October 8 publication of the proposed action—two on September 22, and one on September 24 to Administrator Leavitt. These e-mails, however, solely raise issues unrelated to the action being taken by EPA.

Comment. The first e-mail received on September 22 stated that the Central Phoenix light rail project will increase the production of air pollutants due to the prohibition of left turns from certain streets where the trolley tracks will exist. The e-mail refers to an “Air Quality Technical Report”, and states that 75 percent of the vehicles in the Phoenix vehicle mix will be cars, and 20 percent will be light trucks. This e-mail also refers to a “New Starts Report for 2004”, dated December 2003. This report appears to refer to the projected use of the light rail trains.

Response. Our action in this notice will not have any impact whatsoever on the Central Phoenix light rail project.

Comment. This e-mail also states that the Phoenix area is not in conformity with ozone and PM-10 standards, and that the growth in VMT has exceeded population growth.

Response. Our action today only concerns carbon monoxide, not ozone or PM-10. Our approval is based on both monitored data indicating no violations of the CO standard in the past seven years and modeling which indicates no expected violations of the CO standard to the year 2015. While growth in VMT has exceeded population growth in Phoenix and other fast-growing metropolitan areas, tailpipe emissions standards at the national level and the use of cleaner-burning fuels and other emissions control measures at the local level have reduced CO emissions sufficiently to attain and maintain Federal ambient air quality standards.

Comment. The e-mail refers to the Final Environmental Impact Statement (FEIS), stating that the FEIS shows that the light rail project will not reduce traffic congestion or the production of air pollutants in the light rail corridor. This e-mail comments that ISTEA and TEA-21 legislation call for making transit more efficient, and the commenter does not believe the Phoenix light rail will increase speeds in the light rail corridor, and will not yield much farebox revenue when compared to the cost of moving light rail passengers.

Response. Our action today concerns the MAG serious area CO SIP for the Maricopa County CO nonattainment area and the MAG CO Redesignation Request and Maintenance Plan for the Maricopa County CO nonattainment area. The FEIS for the Phoenix light rail project is completely unrelated to this action.

Comment. The second e-mail from September 22 states that while MAG reports no violations of the CO standard since 1996, the most recent statistics haven't been applied to air quality modeling, and that the light rail trolley hasn't been properly factored in.

Response. The Maricopa County CO nonattainment area has monitored clean data every year between 1996 and 2003. This fact was reflected in our finding of attainment published on September 22, 2003, for the Maricopa County CO nonattainment area (see 68 FR 55008). MAG's transportation and emissions modeling includes the implementation of light rail.

Comment. The e-mail which was sent to EPA Administrator Leavitt on September 24 states that there is no reason to believe that the air quality in the Phoenix area currently conforms to Federal standards for CO.

Response. Monitoring data gathered by ADEQ and Maricopa County indicate that the Maricopa County CO nonattainment area has not had a violation of the CO standard since 1996. The area is now in attainment for the CO Federal health-based standard for CO, based on data from the years 1999 and 2000. We noted this in our finding of attainment (see 68 FR 55008, page 55009, 3rd column).

Comment. The September 24 e-mail also states that our finding of attainment of the CO standard for the Maricopa County nonattainment area (68 FR 55008) reflects only data through 1999.

Response. The finding of attainment was based on monitoring data from the years 1999 and 2000 because 2000 was the attainment year for the Maricopa County serious CO nonattainment area. (See 68 FR 55008, September 22, 2003.) Section 179(c)(1) of the Clean Air Act provides that attainment determinations are to be based upon an area's “air quality as of the attainment date”. Monitoring data gathered by ADEQ and Maricopa County since that time indicate that the Maricopa County CO nonattainment area has not had a violation of the CO standard since 1996, so current data have been reviewed and taken into account in our action today.

Comment. The September 24 e-mail questions how the CO standard can be met given the rapid increase in population and an even faster increase in VMT in the Maricopa County nonattainment area. The e-mail states that Maricopa County's population has been increasing 45 percent every 10 years in recent decades.

Response. MAG's data estimate about a 32 percent increase in population between 2004 and 2015. As indicated in the Appendix to the MAG CO Redesignation Request and Maintenance Plan, while VMT doubles between 1995 and 2015, CO emissions decrease. MAG's models properly account for the growth in VMT.

E-Mails Submitted to EPA During the Public Comment Period

Comment. The first e-mail dated October 19, 2004, asks how it can be possible to reduce CO emissions by half by 2015 assuming 1.2 million additional residents, 700,000-800,000 more vehicles, and additional airplanes and diesel trucks in the Phoenix metropolitan area.

Response. MAG's modeling estimates a 14 percent reduction in CO between 1994 and 2015 and is sufficient to maintain the ambient air quality standard for CO. Tier 2 emissions standards, cleaner burning gasoline, and other measures provide reductions which outweigh the increases in emissions due to vehicle miles travelled.

Comment. The first October 19 e-mail refers to a Draft Environmental Impact Statement (DEIS) in an air quality conformity report.

Response. This comment is not relevant to today's action.

Comment. This same e-mail questioned the CO reductions attributed to oxidants and sulfur in fuel, again in a DEIS.

Response. It is not clear which project DEIS is referred to by the commenter. MAG used the MOBILE6 model, which is the model EPA requires all states except California to use for SIP development. The MOBILE model accounts for fuel properties such as oxidants and sulfur, and reduces the effects of oxidants on CO emissions over time. Most newer cars are equipped with electronic fuel injection systems that generally automatically compensate for the proper air-to-fuel mixture to reduce CO emissions.

Comment. This same e-mail refers to a “new standard for CO” that requires an 8-hour test, and refers to calm days in the summer when CO could be a problem.

Response. There is no new standard for CO; we assume the comment refers to the new 8-hour ozone standard. CO tends to be a wintertime problem, and CO emissions do not tend to be high in the summer.

Comment. The letter we received on October 19 via U.S. Mail questioned our proposed boundary change for the Gila River Indian Reservation. This letter indicated that the Gila River Indian Community is planning a large truck stop along the Reservation border with the Phoenix metropolitan area, as well as substantial development along the northern border of the reservation.

Response. Our proposal to change the boundary of the Phoenix CO maintenance area to remove GRIC was based on monitored air quality data, current emissions levels and sources, and planning considerations. The commenter has not provided any reliable facts about development on the Gila River Indian Reservation that would affect ambient CO concentrations to a degree sufficient to violate the NAAQS. In particular, diesel trucks idling at a truck stop would emit primarily particulate matter (PM) and nitrogen oxides, not CO. GRIC Department of Environmental Quality staff have indicated they are looking into truck stop electrification to reduce the impacts of idling trucks.

Comment. The October 19 letter also questioned whether EPA established air quality monitoring stations on the Reservation or whether we relied on data from the GRIC. The e-mail asserts that the monitors and data were distorted for the purpose of attaining the boundary change.

Response. The commenter has provided only speculation, without any reliable facts to substantiate the claim.

Comment. Finally, the October letter asserts that the entire premise of a status change is faulty and biased.

Response. As stated earlier, the commenter has provided only speculation, without any reliable facts to substantiate the claim.

Comment. The e-mail dated November 8 asserts that MAG's Transportation Improvement Program (TIP) and Long Range Transportation Plan (LRTP) are deficient and not worthy of CO redesignation. The e-mail also raises a concern that the public needs to be protected in fast-growing areas like Maricopa County, and states that CMAQ funding should not be used for the Central Phoenix Light Rail Project.

Response. This comment raises issues unrelated to EPA's action. Our proposed approval of MAG's CO redesignation request and maintenance plan is an action on MAG's SIP revision, not on the TIP or LRTP. MAG has demonstrated through air quality modeling that the Maricopa County CO nonattainment area will stay below federal air quality standards until 2015. In this way, public health will be protected.

Regarding CMAQ funding, while EPA may review and comment on CMAQ funding proposals, final funding decisions are made by other agencies.

Comment. The November 8 e-mail also states that MAG uses flawed and old models, referring to the base year 1994 inventory which MAG used, EPA's MOBILE6 model, and the CO Complex model. This e-mail also states that oxygenated fuels increase aldehydes.

Response. While MAG used a base year 1994 inventory, the redesignation request and maintenance plan also contains emissions inventories for 1998, 1999, 2006, and 2015. We have reviewed these inventories and have found them to be complete, accurate, and current. EPA's MOBILE6 model is the model required to be used by all states except California for SIP development. Studies of air toxics from sources such as gasoline are currently underway at the national level, but there is currently no health standard for aldehydes.

Comment. This same e-mail states that the rapid growth in the MAG region will increase VMT, and that MAG's computer models do not properly incorporate these factors.

Response. As indicated in the Appendix to the MAG CO Redesignation Request and Maintenance Plan, while VMT doubles between 1995 and 2015, CO emissions decrease. MAG's models properly account for this growth in VMT.

III. EPA's Final Action

In today's action, we are approving the MAG Serious Area CO SIP for the Maricopa County CO nonattainment area and the MAG CO Redesignation Request and Maintenance Plan for the Maricopa County CO nonattainment area. We have evaluated the submitted SIP revisions and have determined that they are consistent with the CAA and EPA regulations.

We are approving the following elements of the Revised 1999 CO Plan for the metropolitan Phoenix area and the MAG CO Redesignation Request and Maintenance Plan into the Arizona SIP:

1. 1990 base year and 1993 and 1996 periodic emission inventories as required by sections 172(c)(3) and 187(a)(5).

2. Demonstration that the plan provides for the implementation of reasonably available control measures including transportation control measures under sections 172(c)(1) and 187(b)(2);

3. Demonstration of attainment by December 31, 2000, under section 187(a)(7);

4. Demonstration of reasonable further progress under sections 172(c)(2) and 187(a)(7);

5. Contingency measures under sections 172(c)(9) and 187(a)(3);

6. Forecasts of vehicle miles traveled and provisions for annual tracking and reporting under section 187(a)(2)(A);

7. Transportation control measures as necessary to offset growth in emissions under section 187(b)(2);

8. Attainment year and projected emissions inventories under section 175A;

9. Air quality monitoring requirements under section 110(a)(2) and section 172(c)(7);

10. CO motor vehicle emissions budgets for transportation conformity under section 176(c) for the attainment demonstration and the maintenance plan for the years 2000, 2006 and 2015 under the transportation conformity rule, 40 CFR part 93, subpart A;

12. Demonstration of maintenance under section 175A(a) and a fully-approved maintenance plan under section 175A;

13. Maintenance plan contingency measures under section 175A(d);

14. Commitment for subsequent maintenance plan revisions under section 175A(b);

15. Redesignation of that portion of the Gila River Indian Reservation that is now within the nonattainment area to “nonclassifiable/attainment'; and

16. A determination that the improvement in air quality in the Maricopa County nonattainment area is due to permanent and enforceable reductions in emissions resulting from the implementation of the applicable implementation plan, implementation of applicable Federal air pollution control regulations, and other permanent and enforceable reductions.

We have previously approved the principal control measures relied on for attainment and contingency measures in the Revised 1999 CO Plan, including the area's enhanced inspection and maintenance program (required by section 187(a)(6)), oxygenated gasoline program (required by sections 187(b)(3) and 211(m)), and woodburning curtailment regulations. See 68 FR 2912, 69 FR 10161, 64 FR 60678 and 67 FR 52416.

Nothing in this action should be construed as permitting or allowing or establishing a precedent for any future implementation plan. Each request for revision to a state implementation plan shall be considered separately in light of specific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements.

IV. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” are defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”

Under section 5(b) of Executive Order 13175, EPA may not issue a regulation that has tribal implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by tribal governments, or EPA consults with tribal officials early in the process of developing the proposed regulation. Under section 5(c) of Executive Order 13175, EPA may not issue a regulation that has tribal implications and that preempts tribal law, unless the Agency consults with tribal officials early in the process of developing the proposed regulation.

EPA has concluded that this final rule may have tribal implications. EPA's action will remove the Gila River Indian Community from the Phoenix CO maintenance area. However, it will neither impose substantial direct compliance costs on tribal governments, nor preempt State law. Thus, the requirements of sections 5(b) and 5(c) of the Executive Order do not apply to this rule.

Consistent with EPA policy, EPA nonetheless consulted with representatives of tribal governments early in the process of developing this regulation to permit them to have meaningful and timely input into its development. Representatives of tribal governments approached EPA two years ago and requested that EPA make this boundary change. We agree with the technical and policy rationale the tribe provided, and believe that all tribal concerns have been met. Moreover, in the spirit of Executive Order 13175, and consistent with EPA policy to promote communications between EPA and tribal governments, EPA specifically solicited comment on the proposed rule from tribal officials.

This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 9, 2005. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See CAA section 307(b)(2).)

List of Subjects

40 CFR Part 52

• Environmental protection
• Air pollution control
• Carbon monoxide
• Incorporation by reference
• Intergovernmental regulations
• Reporting and recordkeeping requirements

40 CFR Part 81

• Environmental protection
• Air pollution control
• National parks
• Wilderness areas

Chapter I, title 40 of the Code of Federal Regulations is amended as follows:

PART 52—[AMENDED]

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

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

Subpart D—Arizona

1. Section 52.120 is amended by adding paragraphs (c)(118) and (c)(119) to read as follows:

PART 81—[AMENDED]

1. The authority citation for part 81 continues to read as follows:

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

Subpart C—[Amended]

2. In § 81.303, the table entitled “Arizona—Carbon Monoxide” is amended by revising the entry for the Phoenix Area to read as follows: