[Federal Register Volume 76, Number 30 (Monday, February 14, 2011)]
[Rules and Regulations]
[Pages 8300-8303]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-3027]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2011-0041; FRL-9264-1]
Finding of Failure To Submit State Implementation Plan Revisions
for Particulate Matter, PM-10, Maricopa County (Phoenix) PM-10
Nonattainment Area, AZ
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action to find that Arizona failed to make
a state implementation plan (SIP) submittal required under the Clean
Air Act (CAA or Act) for the Maricopa County (Phoenix) nonattainment
area (Maricopa area) for particulate matter of 10 microns or less (PM-
10). The Maricopa area is a serious PM-10 nonattainment area which,
having failed to attain the PM-10 National Ambient Air Quality
Standards (NAAQS) by its required statutory attainment deadline, is
subject to section 189(d) of the CAA. For such areas, section 189(d)
requires that states submit within 12 months after the applicable
attainment date, plan revisions which provide for attainment of the PM-
10 NAAQS, and from the date of such submission until attainment, for an
annual reduction of PM-10 or PM-10 precursor emissions within the area
of not less than 5 percent of the amount of such emissions as reported
in the most recent inventory prepared for the area.
Arizona submitted a section 189(d) plan for the Maricopa area on
December 21, 2007, and EPA proposed action on this plan on September 9,
2010. On January 25, 2011, prior to final action on the plan by EPA,
Arizona withdrew the submitted plan from the Agency's consideration. As
a result of the withdrawal, EPA is today finding that Arizona failed to
make the submittal required for the Maricopa area under section 189(d)
of the Act.
This action triggers the 18-month clock for mandatory application
of sanctions and 2-year clock for a federal implementation plan (FIP)
under the Act. This action is consistent with the CAA mechanism for
assuring SIP submissions.
DATES: Effective Date: This action was effective as of February 14,
2011.
FOR FURTHER INFORMATION CONTACT: Gregory Nudd, U.S. Environmental
Protection Agency, Region 9, Air Division (AIR-2), 75 Hawthorne Street,
San Francisco, CA 94105-3901, Telephone: (415) 947-4107;
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
The NAAQS are standards for certain ambient air pollutants set by
EPA to protect public health and welfare. PM-10 is among the ambient
air pollutants for which EPA has established health-based standards.
PM-10 causes adverse health effects by penetrating deep in the lungs,
aggravating the cardiopulmonary system. Children, the elderly, and
people with asthma and heart conditions are the most vulnerable.
[[Page 8301]]
On July 1, 1987 EPA revised the health-based NAAQS (52 FR 24672),
replacing the standards for total suspended particulates with new
standards applying only to particulate matter up to ten microns in
diameter (PM-10). At that time, EPA established two PM-10 standards,
annual standards and 24-hour standards. Effective December 18, 2006,
EPA revoked the annual PM-10 standards but retained the 24-hour PM-10
standards. 71 FR 61144 (October 17, 2006). The 24-hour PM-10 standards
of 150 micrograms per cubic meter ([micro]g/m\3\) are attained when the
expected number of days per calendar year with a 24-hour average
concentration above 150 [micro]g/m\3\, as determined in accordance with
appendix K to 40 CFR part 50, is equal to or less than one. 40 CFR 50.6
and 40 CFR part 50, appendix K.
On the date of enactment of the 1990 Clean Air Act Amendments (CAA
or the Act), many areas, including the Maricopa area, meeting the
qualifications of section 107(d)(4)(B) of the amended Act were
designated nonattainment by operation of law. 56 FR 11101 (March 15,
1991). The Maricopa area is located in the eastern portion of Maricopa
County and encompasses the cities of Phoenix, Mesa, Scottsdale, Tempe,
Chandler, Glendale, as well as 17 other jurisdictions and
unincorporated County lands. The nonattainment area also includes the
town of Apache Junction in Pinal County. EPA codified the boundaries of
the Maricopa area at 40 CFR 81.303.
Once an area is designated nonattainment for PM-10, section 188 of
the CAA outlines the process for classifying the area as moderate or
serious and establishes the area's attainment deadline. In accordance
with section 188(a), at the time of designation, all PM-10
nonattainment areas, including the Maricopa area, were initially
classified as moderate.
A moderate PM-10 nonattainment area must be reclassified to serious
PM-10 nonattainment by operation of law if EPA determines after the
applicable attainment date that, based on air quality, the area failed
to attain by that date. CAA sections 179(c) and 188(b)(2). On May 10,
1996, EPA reclassified the Maricopa area as a serious PM-10
nonattainment area. 61 FR 21372.
As a serious PM-10 nonattainment area, the Maricopa area acquired a
new attainment deadline of no later than December 31, 2001. CAA section
188(c)(2). However CAA section 188(e) allows states to apply for up to
a 5-year extension of that deadline if certain conditions are met.
Arizona requested an attainment date extension under CAA section 188(e)
from December 31, 2001 to December 31, 2006. On July 25, 2002, EPA
approved the serious area PM-10 plan for the Maricopa area and granted
Arizona's request to extend the attainment date for the area to
December 31, 2006. 67 FR 48718. This final action, as well as the two
proposals preceding it, provide a more detailed discussion of the
history of PM-10 planning in the Maricopa area. See 65 FR 19964 (April
13, 2000) and 66 FR 50252 (October 2, 2001).
On June 6, 2007, EPA found that the Maricopa area failed to attain
the 24-hour PM-10 NAAQS by December 31, 2006 (72 FR 31183) and required
the submittal of a new plan meeting the requirements of section 189(d)
by December 31, 2007.
On December 19, 2007, the Maricopa Association of Governments (MAG)
adopted the ``MAG 2007 Five Percent Plan for PM-10 for the Maricopa
County Nonattainment Area'' (189(d) plan). On December 21, 2007 the
Arizona Department of Environmental Quality (ADEQ) submitted the 189(d)
plan. MAG adopted and ADEQ submitted this SIP revision in order to
address the CAA requirements in section 189(d).
CAA section 110(k)(1) requires EPA to determine whether a SIP
submission is complete within 60 days of receipt. This section also
provides that any plan that has not been affirmatively determined to be
complete or incomplete shall become complete within 6 months by
operation of law. EPA's completeness criteria are found in 40 CFR part
51, appendix V. The 189(d) plan submittal became complete by operation
of law on June 21, 2008.
EPA proposed to partially approve and partially disapprove the
189(d) plan on September 9, 2010 (75 FR 54806). On January 25, 2011,
prior to any final EPA action, Arizona withdrew the 189(d) plan from
the Agency's consideration.
II. Final Action
A. Finding of Failure To Submit Required SIP Revisions
If Arizona does not submit the required plan revisions within 18
months of the effective date of today's rulemaking, pursuant to CAA
section 179(a) and 40 CFR 52.31, the offset sanction identified in CAA
section 179(b) will be applied in the affected area. If the State has
still not made a complete submittal 6 months after the offset sanction
is imposed, then the highway funding sanction will apply in the
affected area, in accordance with 40 CFR 52.31.\1\ The 18-month clock
will stop and the sanctions will not take effect if, within 18 months
after the date of the finding, EPA finds that the State has made a
complete submittal addressing the 189(d) PM-10 requirements for the
Maricopa area. In addition, CAA section 110(c)(1) provides that EPA
must promulgate a federal implementation plan (FIP) no later than 2
years after a finding under section 179(a) unless EPA takes final
action to approve the submittal within 2 years of EPA's finding.
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\1\ In a 1994 rulemaking, EPA established the Agency's selection
of the sequence of these two sanctions: The offset sanction under
section 179(b)(2) shall apply at 18 months, followed 6 months later
by the highway sanction under section 179(b)(1) of the Act. EPA does
not choose to deviate from this presumptive sequence in this
instance. For more details on the timing and implementation of the
sanctions, see 59 FR 39832 (August 4, 1994), promulgating 40 CFR
52.31, ``Selection of sequence of mandatory sanctions for findings
made pursuant to section 179 of the Clean Air Act.''
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B. Effective Date Under the Administrative Procedures Act
This final action is effective on February 14, 2011.
Under the Administrative Procedures Act (APA), 5 U.S.C. 553(d)(3),
an agency rulemaking may take effect before 30 days after the date of
publication in the Federal Register if an agency has good cause to
mandate an earlier effective date. Today's action concerns SIP
revisions that are already overdue and the State has been aware of
applicable provisions of the CAA relating to overdue SIPs. In addition,
today's action simply starts a ``clock'' that will not result in
sanctions for 18 months, and that the State may ``turn off'' by a
complete SIP submittal addressing the 189(d) PM-10 requirements for the
Maricopa area. These reasons support an effective date prior to 30 days
after the date of publication.
C. Notice-and-Comment Under the Administrative Procedures Act
This final agency action is not subject to the notice-and-comment
requirements of the APA, 5 U.S.C. 533(b). EPA believes that because of
the limited time provided to make findings of failure to submit
regarding SIP submissions, Congress did not intend such findings to be
subject to notice-and-comment rulemaking. However, to the extent such
findings are subject to notice-and-comment rulemaking, EPA invokes the
good cause exception pursuant to the APA, 5 U.S.C. 553(d)(3). Notice
and comment are unnecessary because no EPA judgment is involved in
making a nonsubstantive finding of failure to submit SIPs required by
the
[[Page 8302]]
CAA. Furthermore, providing notice and comment would be impracticable
because of the limited time provided under the statute for making such
determinations. Finally, notice and comment would be contrary to the
public interest because it would divert Agency resources from the
critical substantive review of submitted SIPs. See 58 FR 51270, 51272,
note 17 (October 1, 1993); 59 FR 39832, 39853 (August 4, 1994).
III. Statutory and Executive Order Reviews
A. Executive Order 12866, Regulatory Planning and Review
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866, entitled ``Regulatory
Planning and Review.''
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Burden is defined at 5 CFR 1320.3(b).
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions.
This final rule will not have a significant impact on a substantial
number of small entities because findings of failure to submit required
SIP revisions do not by themselves create any new requirements.
Therefore, I certify that this action will not have a significant
economic impact on a substantial number of small entities.
D. Unfunded Mandates Reform Act
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that today's action does not include a Federal
mandate that may result in estimated costs of $100 million or more to
either State, local, or tribal governments in the aggregate, or to the
private sector. The CAA provision discussed in this rule requires
states to submit SIPs. This rule merely finds that Arizona has not met
that requirement. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
E. Executive Order 13132, Federalism
Federalism (64 FR 43255, August 10, 1999) revokes and replaces
Executive Orders 12612 (Federalism) and 12875 (Enhancing the
Intergovernmental Partnership). Executive Order 13132 requires EPA to
develop an accountable process to ensure ``meaningful and timely input
by State and local officials in the development of regulatory policies
that have federalism implications.'' ``Policies that have federalism
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.'' Under Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law unless the
Agency consults with State and local officials early in the process of
developing the proposed regulation.
This rule will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government, as specified in Executive Order 13132, because it
does not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. Thus, the
requirements of section 6 of the Executive Order do not apply to this
rule.
F. Executive Order 13175, Coordination With Indian Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This final rule does not have
tribal implications, as specified in Executive Order 13175. It will not
have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes. Thus, Executive Order 13175 does not
apply to this rule.
G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying only to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
rule is not subject to Executive Order 13045 because it merely finds
that Arizona has failed to make a submission that is required under the
Clean Air Act.
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12 of the National Technology Transfer and Advancement Act
(NTTAA) of 1995 requires Federal agencies to evaluate existing
technical standards when developing a new regulation. To comply with
NTTAA, EPA must consider and use ``voluntary consensus standards''
(VCS) if available and applicable when developing programs and policies
unless doing so would be inconsistent with applicable law or otherwise
impractical.
The EPA believes that VCS are inapplicable to this action. Today's
action does not require the public to
[[Page 8303]]
perform activities conducive to the use of VCS.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Population
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA lacks the discretionary authority to address environmental
justice in this rulemaking.
K. Congressional Review Act
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.
section 804(2). This rule will be effective February 14, 2011.
L. Petitions for Judicial Review
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 April 15, 2011. 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)).
Authority: 42 U.S.C. 7401 et seq.
Dated: January 3, 2011.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2011-3027 Filed 2-11-11; 8:45 am]
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