Approval and Promulgation of Implementation Plans; Arizona-Phoenix PM-10 Nonattainment Area; Salt River Area Plan for Attainment of the 24-hour PM-10 Standard

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is finalizing approval under the Clean Air Act (CAA) of provisions of the Revised PM-10 State Implementation Plan (SIP) for the Salt River Area submitted by the State of Arizona to EPA in October and November 2005. These submittals include adopted rules, resolutions and measures that address particulate matter (PM-10) emissions from fugitive dust sources.

DATES:

Effective Date: This rule is effective on September 20, 2007.

ADDRESSES:

EPA has established docket number EPA-R09-OAR-2006-0526 for this action. The index to the docket is available electronically at www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available in either location (e.g., Confidential Business Information). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT:

Mae Wang, EPA Region IX, (415) 947-4124, wang.mae@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document, “we,” “us” and “our” refer to EPA.

Table of Contents

I. Proposed Action

II. Public Comments and EPA Responses

III. EPA Action

IV. Statutory and Executive Order Reviews

I. Proposed Action

On July 12, 2006 (71 FR 39251), EPA proposed to approve the rules, resolutions and measures listed below into the Arizona PM-10 SIP pursuant to the cited CAA sections. We also proposed on July 12, 2006, to approve Maricopa County Air Quality Department (MCAQD) Rule 316, “Nonmetallic Mineral Processing,” adopted on June 8, 2005. In this final rule we are approving all the items listed below. EPA is not, however, including Rule 316 in this final action because we are re-evaluating the rule and expect to address it in a separate rulemaking.

These provisions were submitted as part of the Revised PM-10 State Implementation Plan for the Salt River Area, Arizona Department of Environmental Quality (ADEQ), September 2005 (Salt River plan) submitted to EPA on October 7, 2005, and the Revised PM-10 State Implementation Plan for the Salt River Area, Additional Submittals (Maricopa County Rule 310.01, Maricopa Dust Control Permit and Guidance for Application for Dust Control Permit), ADEQ, September 2005, Additional Submittal in November 2005, (Salt River supplement), submitted on November 29, 2005.

Located in metropolitan Phoenix, the Salt River area is a 32-square mile subarea of the metropolitan Phoenix (Maricopa County) serious PM-10 nonattainment area. For additional background on the Salt River portion of the Phoenix PM-10 nonattainment area, see 67 FR 19148 (April 18, 2002) and 67 FR 44369 (July 2, 2002).

We proposed to approve the specified rules, resolutions and measures in the Salt River plan and supplement because we determined that they complied with the referenced CAA requirements. CAA section 189(b)(1)(B) requires serious area PM-10 plans to provide for the implementation of Best Available Control Measures (BACM). CAA section 188(e) requires a state seeking an extension of a serious PM-10 area's attainment deadline to demonstrate to our satisfaction that its serious area plan includes the most stringent measures (MSM) that are included in the implementation plan of any state or are achieved in practice in any state and can be feasibly implemented in the area. Our proposed action contains more information on the rules, resolutions and measures and our evaluation of them.

II. Public Comments and EPA Responses

EPA's proposed action provided a 30-day public comment period. During this period, we received comments from Joy Herr-Cardillo, Arizona Center for Law in the Public Interest (ACLPI). ACLPI's comment letter and our response are summarized below. We also received a comment letter from the Arizona Rock Products Association (ARPA) on our proposed action as it relates to MCAQD Rule 316. Because, as explained above, our final action does not include Rule 316, we are not responding to ARPA's letter here.

Comment: ACLPI comments that our proposed approval does not address the contingency measures discussed in the Salt River plan. ACLPI states that the two measures designated as contingency measures for the Phoenix area in the Arizona State Implementation Plan are already implemented, and that the purpose of contingency provisions is to assure that the State will act promptly to protect public health if a milestone for reasonable further progress or the attainment date is not met. ACLPI notes that the attainment date for the Phoenix area is December 31, 2006. ACLPI contends that the CAA envisions additional measures which are automatically and immediately implemented if and when the deadline is missed without additional EPA or state action. ACLPI states that the fact that Arizona did not rely upon the existing contingency measures in its attainment demonstration is not relevant. ACLPI concludes that because the Salt River plan fails to include meaningful contingency measures, it does not satisfy the CAA requirements.

Response: Our current action on the Salt River plan and supplement is limited to the rules, resolutions and measures in these documents. On June 6, 2007, we determined that the Phoenix area did not attain the 24-hour PM-10 standard by the required December 31, 2006, deadline. 72 FR 31183. Under CAA section 189(d), the State must therefore submit plan revisions by December 31, 2007, that provide for “attainment of the PM-10 air quality standard and, from the date of such submission until attainment, for an annual reduction in PM-10 or PM-10 precursor emissions within the area of not less than 5 percent of the amount of such emissions as reported in the most recent inventory prepared for such area.” In addition to the attainment demonstration and 5 percent requirements, the plan must address all applicable requirements of the CAA, including sections 110(a), 172(c), 176(c) and 189(c)(1).

III. EPA Action

As discussed above, this action does not address MCAQD Rule 316. With respect to the other submitted rules, resolutions and measures that we proposed for approval on July 12, 2006 (71 FR 39251), and that are listed in Table I above, we received no comments that change our assessment that they comply with the applicable CAA requirements. Therefore, as authorized in CAA section 110(k)(3), EPA is fully approving the rules, resolutions and measures in Table I as meeting the CAA requirements indicated therein.

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).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state 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 approves a state rule implementing a Federal standard.

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 22, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 52

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

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

PART 52—[AMENDED]

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

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

Subpart D—Arizona

2. Section 52.120 is amended by adding paragraphs (c)(137) and (138)to read as follows: