[Federal Register: February 8, 2006 (Volume 71, Number 26)]
[Rules and Regulations]
[Page 6352-6356]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08fe06-9]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R09-OAR-2005-AZ-0006; FRL-8029-2]
Approval and Promulgation of Implementation Plans; Designation of
Areas for Air Quality Planning Purposes; State of Arizona; Finding of
Attainment for Ajo Particulate Matter of 10 Microns or Less
(PM10) Nonattainment Area; Determination Regarding
Applicability of Certain Clean Air Act Requirements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is taking direct final action to determine that the Ajo
moderate PM10 nonattainment area in Arizona has attained the
National Ambient Air Quality Standards (NAAQS) for particulate matter
with an aerodynamic diameter less than or equal to a nominal 10
micrometers (PM10). This determination is based upon
monitored air quality data for the PM10 NAAQS during the
years 2002-2004. EPA also finds that the Ajo area has continued to
attain the PM10 NAAQS since 2004. Based on this
determination, EPA is also determining that certain Clean Air Act
requirements are not applicable for so long as the Ajo area continues
to attain the PM10 NAAQS.
DATES: This direct final rule is effective on April 10, 2006 without
further notice, unless EPA receives adverse comment by March 10, 2006.
If adverse comment is received, EPA will publish a timely withdrawal of
the direct final rule in the Federal Register informing the public that
the rule will not take effect.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2005-AZ-0006 by one of the following methods:
http://www.regulations.gov. Follow the on-line
instructions for submitting comments.
E-mail: tax.wienke@epa.gov.
Fax: (415) 947-3579 (please alert the individual listed in
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
Mail: Wienke Tax, Office of Air Planning, Environmental
Protection Agency (EPA), Region 9, Mailcode AIR-2, 75 Hawthorne Street,
San Francisco, California 94105-3901.
Hand Delivery: Wienke Tax, Office of Air Planning,
Environmental Protection Agency (EPA), Region 9, Mailcode AIR-2, 75
Hawthorne Street, San Francisco, California 94105-3901. Such deliveries
are only accepted Monday through Friday, 8 a.m. to 4:55 p.m., excluding
federal holidays. Special arrangements should be made for deliveries of
boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R09-OAR-
2005-AZ-0006. EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online at http://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 information
that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://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 e-mail comment directly to EPA, without
going through http://www.regulations.gov, your e-mail 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 Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
For additional instructions on submitting
comments, go to Section I. General Information of the SUPPLEMENTARY
INFORMATION section of this document.
Docket: All documents in the docket are listed in the http://www.regulations.gov
index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy
form. Publicly available docket materials are available either
electronically in http://www.regulations.gov or in hard copy at
[[Page 6353]]
the Office of Air Planning, Environmental Protection Agency (EPA),
Region 9, Mailcode AIR-2, 75 Hawthorne Street, San Francisco,
California 94105-3901. EPA requests that if at all possible, you
contact the individual listed in the FOR FURTHER INFORMATION CONTACT
section to view the hard copy of the docket. You may view the hard copy
of the docket Monday through Friday, 8 a.m. to 4 p.m., excluding
federal holidays.
FOR FURTHER INFORMATION CONTACT: Wienke Tax, Office of Air Planning,
Environmental Protection Agency (EPA), Region 9, Mailcode AIR-2, 75
Hawthorne Street, San Francisco, California 94105-3901, (520) 622-1622,
tax.wienke@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, wherever ``we,''
``us,'' or ``our'' is used, we mean the EPA.
Table of Contents
I. Background
A. What National Ambient Air Quality Standards (NAAQS) Are
Considered in Today's Finding?
B. What Is the Designation and Classification of This
PM10 Nonattainment Area?
C. How Do We Make Attainment Determinations?
II. What Is the Basis for EPA's Determination That the Ajo Area Has
Attained the PM10 NAAQS?
III. What Are the Applicable Planning Requirements for the Ajo Area
as a Result of EPA's Attainment Determination?
IV. EPA's Final Action
V. Statutory And Executive Order Reviews
I. Background
A. What National Ambient Air Quality Standards (NAAQS) Are Considered
in Today's Finding?
The NAAQS are safety thresholds for certain ambient air pollutants
set by EPA to protect public health and welfare. Particulate matter
with an aerodynamic diameter of less than or equal to 10 micrometers,
or PM10, is the subject of this action. PM10 is
among the ambient air pollutants for which EPA has established health-
based standards.
PM10 causes adverse health effects by penetrating deep
in the lungs, aggravating the cardiopulmonary system. Children, the
elderly, and people with asthma and heart conditions are the most
vulnerable.
On July 1, 1987 (52 FR 24634), EPA revised the NAAQS for
particulate matter with an indicator that includes only those particles
with an aerodynamic diameter less than or equal to a nominal 10
micrometers. (See 40 CFR 50.6). The 24-hour primary PM10
standard is 150 micrograms per cubic meter ([mu]g/m3) with
no more than one expected exceedance per year. The annual primary
PM10 standard is 50 [mu]g/m3 as an annual
arithmetic mean. The secondary PM10 standards, promulgated
to protect against adverse welfare effects, are identical to the
primary standards.
B. What Is the Designation and Classification of This PM10
Nonattainment Area?
Upon enactment of the 1990 Clean Air Act Amendments (CAA or the
Act), PM10 areas meeting the requirements of either (i) or
(ii) of section 107(d)(4)(B) of the Act were designated nonattainment
for PM10 by operation of law and classified ``moderate.''
These areas included all former Group I PM10 planning areas
identified in 52 FR 29383 (August 7, 1987) and further clarified in 55
FR 45799 (October 31, 1990), and any other areas violating the NAAQS
for PM10 prior to January 1, 1989 (many of these areas were
identified by footnote 4 in the October 31, 1990 Federal Register
document). A Federal Register notice announcing the areas designated
nonattainment for PM10 upon enactment of the 1990
Amendments, known as ``initial'' PM10 nonattainment areas,
was published on March 15, 1991 (56 FR 11101). A subsequent Federal
Register document correcting some of these areas was published on
August 8, 1991 (56 FR 37654). These nonattainment designations and
moderate area classifications were codified in 40 CFR part 81 in a
Federal Register document published on November 6, 1991 (56 FR 56694).
All other areas in the nation not designated nonattainment at enactment
were designated unclassifiable (see section 107(d)(4)(B)(iii) of the
Act).
Ajo, Arizona was among the areas listed in the March 15, 1991
Federal Register action (see 56 FR at 11103) as meeting the
requirements of either (i) or (ii) of section 107(d)(4)(B) of the Act
and was designated nonattainment for PM10 by operation of
law and classified ``moderate.'' In accordance with section 189(a)(2)
of the CAA, Arizona was to submit a state implementation plan (SIP) by
November 15, 1991 demonstrating attainment of the PM10
standards by December 31, 1994 for the Ajo area.\1\
---------------------------------------------------------------------------
\1\ Arizona submitted a moderate area plan for the Ajo area on
November 14, 1991 but EPA has not taken action on it.
---------------------------------------------------------------------------
C. How Do We Make Attainment Determinations?
Pursuant to sections 179(c) and 188(b)(2) of the Act, we have the
responsibility of determining within six months of the applicable
attainment date whether, based on air quality data, PM10
nonattainment areas attained the NAAQS by that date. Determinations
under section 179(c)(1) of the Act are to be based upon an area's ``air
quality as of the attainment date.'' Section 188(b)(2) is consistent
with this requirement.
Generally, we will determine whether an area's air quality is
meeting the PM10 NAAQS for purposes of section 179(c)(1) and
188(b)(2) based upon data gathered at established state and local air
monitoring stations (SLAMS) and national air monitoring sites (NAMS) in
the nonattainment area and entered into the EPA's Air Quality System
(AQS) database. Data entered into the AQS has been determined to meet
federal monitoring requirements (see 40 CFR 50.6; 40 CFR part 50,
appendix J; 40 CFR part 53; 40 CFR part 58, appendices A and B) and may
be used to determine the attainment status of areas. We will also
consider air quality data from other air monitoring stations in the
nonattainment area provided that the stations meet the federal
monitoring requirements for SLAMS. All data are reviewed to determine
the area's air quality status in accordance with our guidance at 40 CFR
part 50, appendix K.
Attainment of the annual PM10 standard is achieved when
the annual arithmetic mean PM10 concentration over a three-
year period is equal to or less than 50 [mu]g/m3. Attainment
of the 24-hour standard is determined by calculating the expected
number of days in a year with PM10 concentrations greater
than 150 [mu]g/m3. The 24-hour standard is attained when the
expected number of days with levels above 150 [mu]g/m3
(averaged over a three-year period) is less than or equal to one. Three
consecutive years of air quality data are generally necessary to show
attainment of the 24-hour and annual standards for PM10. See
40 CFR part 50 and appendix K. A complete year of air quality data, as
referred to in 40 CFR part 50, appendix K, is comprised of all four
calendar quarters with each quarter containing data from at least 75
percent of the scheduled sampling days.
II. What Is the Basis for EPA's Determination That the Ajo Area Has
Attained the PM10 NAAQS?
The Ajo PM10 nonattainment area is located in western
Pima County in southern Arizona. The town of Ajo is
[[Page 6354]]
located approximately in the center of this 47 square mile
nonattainment area. Ajo is one of several early settlements in Arizona
in which mining and copper smelting was of prominent importance. When
the New Cornelia mine, operated by Phelps Dodge, closed in 1986, the
population of the Ajo area significantly declined. More recent growth
in the Ajo area may be attributed to additional employers in the local
economy, as well as retirees moving into the area. Employment is mainly
in the commercial, service, and tourism sectors.
Ajo has one SLAMS monitor operated by the Arizona Department of
Environmental Quality (ADEQ). Table 1 summarizes the one-in-six day
PM10 data collected from 2002-2004. We deemed the data from
this site valid and the data has been submitted by the ADEQ to be
included in AQS.
Table 1.--Summary of 24 Hour and Annual PM10 Concentrations ([mu]g/m\3\)
for Ajo, 2002-2004
------------------------------------------------------------------------
Year
-----------------------
2002 2003 2004
------------------------------------------------------------------------
Maximum 24 hour concentration................... 50 139 43
Annual average.................................. 18.7 22.7 19.3
---------
3-year annual average........................... 21
------------------------------------------------------------------------
The PM10 concentrations reported at the Ajo monitoring
site showed no measured exceedances of the 24-hour PM10
NAAQS between 2002 and 2004, or since 2004.\2\ Thus, the three-year
average was less than 1.0, which indicates Ajo has attained the 24-hour
PM10 NAAQS.
---------------------------------------------------------------------------
\2\ We have received AQS data from ADEQ through September 30,
2005 and the Ajo nonattainment area continues to attain both
PM10 standards. States are required to report data to the
AIRS AQS on a rolling basis and have until 90 days from the end of a
given quarter to submit quality-assured monitoring data into AQS.
See 40 CFR 58.28.
---------------------------------------------------------------------------
Review of the annual standard for calendar years 2002, 2003, and
2004 reveals that Ajo also attained the annual PM10 NAAQS.
There was no violation of the annual standard for the three-year period
from 2002 through 2004, or since 2004. See footnote 2.
III. What Are the Applicable Planning Requirements for the Ajo Area as
a Result of EPA's Attainment Determination?
The air quality planning requirements for moderate PM10
nonattainment areas are set out in subparts 1 and 4 of title I of the
Act. We have issued guidance in a General Preamble \3\ describing our
views on how we will review SIPs and SIP revisions submitted under
title I of the Act, including those containing moderate PM10
nonattainment area SIP provisions. The General Preamble provides a
detailed discussion of our interpretation of the title I requirements.
---------------------------------------------------------------------------
\3\ ``General Preamble for the Implementation of Title I of the
Clean Air Act Amendments of 1990'' (57 FR 13498, April 16, 1992, as
supplemented 57 FR 18070, April 28, 1992).
---------------------------------------------------------------------------
In nonattainment areas where monitored data demonstrates that the
NAAQS have already been achieved, EPA has determined that certain
requirements of part D, subparts 1 and 2 of the Act do not apply.
Therefore we do not require certain submissions for an area that has
attained the NAAQS. These include reasonable further progress (RFP)
requirements, attainment demonstrations, and contingency measures,
because these provisions have the purpose of helping achieve attainment
of the NAAQS.
This interpretation of the CAA is known as the Clean Data Policy
and is the subject of two EPA memoranda. EPA also finalized the
statutory interpretation set forth in the policy in a final rule, 40
CFR 51.918, as part of its ``Final Rule to Implement the 8-hour Ozone
National Ambient Air Quality Standard--Phase 2'' (Phase 2 Final Rule).
See discussion in the preamble to the rule at 70 FR 71612, 71645-71646
(November 29, 2005). EPA believes that the legal bases set forth in
detail in our Phase 2 Final rule, our May 10, 1995 memorandum from John
S. Seitz, entitled ``Reasonable Further Progress, Attainment
Demonstration, and Related Requirements for Ozone Nonattainment Areas
Meeting the Ozone National Ambient Air Quality Standard,'' and our
December 14, 2004 memorandum from Stephen D. Page entitled ``Clean Data
Policy for the Fine Particle National Ambient Air Quality Standards''
are equally pertinent to the interpretation of provisions of subparts 1
and 4 applicable to PM10. Our interpretation that an area
that is attaining the standards is relieved of obligations to
demonstrate RFP and to provide an attainment demonstration and
contingency measures pursuant to part D of the CAA, pertains whether
the standard is PM10, ozone or PM2.5.\4\
---------------------------------------------------------------------------
\4\ Three U.S. Circuit Courts of Appeals have upheld EPA
rulemakings applying its interpretation of subparts 1 and 2 with
respect to ozone. Sierra Club v. EPA, 99F.3d 1551 (10th Cir. 1996);
Sierra Club v. EPA, 375 F. 3d 537 (7th Cir. 2004); Our Children's
Earth Foundation v. EPA, N. 04-73032 (9th Cir. June 28, 2005)
(memorandum opinion).
---------------------------------------------------------------------------
It has been EPA's longstanding interpretation that the general
provisions of part D, subpart 1 of the Act (sections 171 and 172) do
not require the submission of SIP revisions concerning RFP for areas
already attaining the ozone NAAQS because the stated purpose of RFP is
to ensure attainment by the applicable date. 57 FR at 13564. EPA
believes the same reasoning applies to the PM10 provisions
of part D, subpart 4. Section 189(c)(1), applicable to PM10
nonattainment areas, states that revisions shall contain milestones
which are to be achieved until the area is redesignated to attainment,
and such milestones are designed to show reasonable further progress
``toward attainment by the applicable date'', as defined by section
171. Thus it is clear that once the area has attained the standard, no
further milestones are necessary or meaningful.
With respect to the attainment demonstration requirements of
section 189(a)(1)(B), an analogous rationale leads to the same result.
Section 189(a)(1)(B) requires that the plan provide for ``a
demonstration (including air quality modeling) that the [SIP] will
provide for attainment by the applicable attainment date. * * *'' As
with the RFP requirements, if an area is already monitoring attainment
of the standards, EPA believes there is no need for an area to make a
further submission containing additional measures to achieve
attainment. This is also consistent with the interpretation of the
section 172(c) requirements provided by EPA in the General Preamble (57
FR at 13564), the December 14, 2004 memorandum and of the section
182(b) and (c) requirements set forth in the May 10, 1995 memorandum.
Other SIP submission requirements are linked with these attainment
demonstration and RFP requirements, and similar reasoning applies to
them. These requirements include the contingency measure requirements
of section 172(c)(9) and 182(c)(9). We have interpreted the contingency
measure requirements of section 172(c)(9) and 182(c)(9) as no longer
applying when an area has attained the standard, because those
``contingency measures are directed at ensuring RFP and attainment by
the applicable date.'' (57 FR at 13564; May 10, 1995 memorandum at 5-
6.)
Both Sections 172(c) and 189(a)(1)(C) require ``provisions to
assure that reasonably available control measures'' (RACM) are
implemented in a nonattainment area. However, the Ajo area was able to
attain the PM10 NAAQS without any additional measures being
implemented. The General Preamble, 57 FR at 13560, states that EPA
interprets section 172(c)(1) so that RACM requirements are a
``component'' of an area's attainment demonstration. Thus,
[[Page 6355]]
for the same reason the attainment demonstration no longer applies by
its own terms, the requirement for RACM no longer applies.
Here, as in both our Phase 2 final rule and ozone and
PM2.5 clean data memoranda, we emphasize that the suspension
of a requirement to submit SIP revisions concerning these RFP,
attainment demonstration, RACM, and other related requirements exists
only for as long as a nonattainment area continues to monitor
attainment of the standard. If such an area experiences a violation of
the NAAQS, the basis for the requirements being suspended would no
longer exist. Therefore, should EPA at some future time determine that
an area that had clean data, but which has not yet been redesignated as
attainment for a NAAQS has violated the relevant standard, the area
would again be required to submit the pertinent CAA requirements for
the area.\5\
---------------------------------------------------------------------------
\5\ Note, however, that on December 20, 2005, EPA proposed
revisions to the NAAQS for particulate matter. See 71 FR 2620,
January 17, 2006. The proposed revisions address two categories of
particulate matter: Fine particles which are particles 2.5
micrometers in diameter and smaller; and ``inhalable coarse''
particles which are particles between 2.5 and 10 micrometers
(PM10-2.5). Upon finalization of a primary 24-hour
standard for PM10-2.5, EPA proposes to revoke the current
24-hour PM10 standard in all areas of the country except
in areas where there is at least one monitor located in an urbanized
area (as defined by the U.S. Bureau of the Census) with a minimum
population of 100,000 that violates the current 24-hour
PM10 standard based on the most recent three years of
data. In addition, EPA proposes to revoke the current annual
PM10 standard upon finalization of a primary 24-hour
standard for PM10-2.5.
---------------------------------------------------------------------------
IV. EPA's Final Action
Based on quality-assured data meeting the requirements of 40 CFR
part 50, appendix K, we find that the Ajo, Arizona nonattainment area
has attained the PM10 NAAQS. This action is not a
redesignation to attainment under CAA section 107(d)(3) because we have
not yet approved a maintenance plan as required under section 175(A) of
the CAA or determined that the area has met the other CAA requirements
for redesignation. The classification and designation status in 40 CFR
part 81 will remain moderate nonattainment for this area until such
time as Arizona meets the CAA requirements for redesignation of the Ajo
area to attainment. See footnote 5.
EPA also finds that, because the Ajo area has continued to attain
the NAAQS, the following CAA requirements no longer apply: The part D,
subpart 4 obligations to provide an attainment demonstration pursuant
to section 189(a)(1)(B), the RACM provisions of 189(a)(1)(c), the RFP
provisions established by section 189(c)(1), and the attainment
demonstration, RACM, RFP and contingency measure provisions of part D,
subpart 1 contained in section 172 of the Act.
We are publishing this rule without prior proposal because the
Agency views this as a noncontroversial action and anticipates no
adverse comments. However, in the proposed rules section of this
Federal Register publication, EPA is publishing a separate document
that will serve as the proposal should adverse comments be filed. This
action will be effective April 10, 2006, without further notice unless
the EPA receives relevant adverse comments by March 10, 2006.
If we receive such comments, then we will publish a document
withdrawing the final rule and informing the public that the rule will
not take effect. All public comments received will then be addressed in
a subsequent final rule based on the proposed rule. We will not
institute a second comment period. Parties interested in commenting
should do so at this time. If no such comments are received, the public
is advised that this rule will be effective on April 10, 2006, and no
further action will be taken on the proposed rule.
V. 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 makes a determination based on air quality data and does not
impose any additional requirements. 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 does not impose any
additional enforceable duty, 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 97249, 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 makes a determination
based on air quality data and does not alter the relationship or the
distribution of power and responsibilities established in the CAA. 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.
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 CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by April 10, 2006. 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).)
[[Page 6356]]
List of Subjects in 40 CFR Parts 52 and 81
Environmental protection, Air pollution control, National parks,
Wilderness areas, Intergovernmental relations, Particulate matter,
Reporting and recordkeeping requirements.
Dated: January 24, 2006.
Wayne Nastri,
Regional Administrator, Region 9.
[FR Doc. 06-1174 Filed 2-7-06; 8:45 am]
BILLING CODE 6560-50-P