[Federal Register Volume 66, Number 104 (Wednesday, May 30, 2001)]
[Rules and Regulations]
[Pages 29230-29236]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-13512]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[AZ-098-0025; FRL-6989-1]
Determination of Attainment of the 1-Hour Ozone Standard for the
Phoenix Metropolitan Area, Arizona and Determination Regarding
Applicability of Certain Clean Air Act Requirements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is determining that the Phoenix metropolitan serious ozone
nonattainment area has attained the 1-hour ozone air quality standard
by the deadline required by the Clean Air Act (CAA), November 15, 1999.
Based on this determination, we also are determining that the CAA's
requirements for reasonable further progress and attainment
demonstrations and for contingency measures for the 1-hour ozone
standard are not applicable to the area for so long as the Phoenix
metropolitan area continues to attain the 1-hour ozone standard.
EFFECTIVE DATE: June 29, 2001.
FOR FURTHER INFORMATION CONTACT: Doris Lo, Office of Air Planning (AIR-
2), U.S. Environmental Protection Agency, Region 9, 75 Hawthorne
Street, San Francisco, California 94105. (415) 744-1287,
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Attainment Finding
A. Response to Comments on the Proposed Finding of Attainment
B. Attainment Finding for the Phoenix Area
III. Applicability of Clean Air Act Planning Requirements
A. EPA's Policy on the Applicability of Certain CAA Planning
Requirements in Areas Attaining the 1-Hour Ozone Standard
B. Response to Comments on EPA's Policy
[[Page 29231]]
C. Effects of the Determination on the Phoenix Area and of a
Future Violation on this Determination
D. Effect of the Determination on Transportation Conformity
IV. Administrative Requirements
I. Background
Under CAA section 181(b)(2)(A), we must determine within six months
of an area's applicable attainment date whether an ozone nonattainment
area has attained the 1-hour ozone standard. On May 19, 2000 (65 FR
31859), we proposed to find that the Phoenix metropolitan serious ozone
nonattainment area had attained the 1-hour ozone standard by its Clean
Air Act (CAA) mandated attainment date of November 15, 1999. This
proposal was based on all available, quality-assured air quality data
collected from the monitoring network, which we determined met our
regulations for state air quality monitoring networks.
II. Attainment Finding
A. Response to Comments on the Proposed Finding of Attainment
We received comments on our proposed attainment finding only from
the Arizona Center for Law in the Public Interest (ACLPI). These
comments concerned the adequacy of the Phoenix area ozone monitoring
network. We respond to the most important of these comments below. Our
complete responses to all comments can be found in the technical
support document (TSD) for this action.
Comment: ACLPI claims that EPA's proposed rulemaking contains no
evidence that Maricopa County Environmental Services Department (MCESD)
has made changes to its ozone network in response to the inadequacies
documented by EPA in the past. It also asserts that the County and the
State have apparently discontinued the use of certain monitoring sites
and states it found particularly troubling the discontinuance of the
Papago Park monitor, which recorded the highest ozone violation in
1995.
Response: We agree that the Maricopa County ozone monitoring
network was deficient when evaluated by EPA in 1989 and 1992. However,
rather than reviewing all of the past inadequacies and determining
whether the County addressed each one, we decided that a more
reasonable approach was to evaluate the ozone monitoring network
operated by MCESD as it existed during the attainment period 1997-1999.
We have worked successfully with the MCESD over the past 9 years to
improve its ambient monitoring program. We have determined that the
ozone monitoring network as designed and operated during the attainment
period, and at present, meets all applicable federal regulations. By
concluding that the network meets our monitoring regulations, we
effectively concluded that MCESD has corrected all past inadequacies.
The issue of whether or not the County and/or State has
discontinued the operation of certain sites is not as important as
whether the remaining network is designed and operated in a manner that
allows the determination that the data collected are representative of
ozone air quality in the Phoenix area. We have concluded that the
network is sufficient to serve that purpose.
The Papago Park ozone monitor is still operating but has been
renamed ``Emergency Management.'' Papago Park was the name given to the
site by the Arizona Department of Environmental Quality (ADEQ) which
initially operated the site. When the County took over the site, it was
renamed Emergency Management. The site has been in continuous operation
since it was established in 1990.
Comment: ACLPI asserts that EPA acknowledged that the ozone network
in Phoenix still fails to meet all of the design requirements of 40 CFR
part 58 in that the network does not meet the third monitoring
objective, ``determining the impact on ambient pollution levels of
significant sources or source categories,'' which can be met by
monitoring emissions from significant sources of nitrogen oxides
(NOX) and volatile organic compounds (VOC).
Response: We stand by our position that in designing an ozone
monitoring network--that is, a monitoring network that measures the
concentration of the chemical compound ``ozone'' (O3)--an
agency cannot meet the third monitoring objective of assessing the
impact of major sources or source categories since ozone is not emitted
by any type of source. Ozone is formed in an atmospheric, photochemical
reaction between NOX and VOC. Precursor emissions from a
source are transported well downwind before they react to form ozone.
In an urban setting, emissions from large point sources mix with
emissions from area and mobile sources as they are transported downwind
and form ozone. In this setting, it is impossible to monitor
specifically for ozone formed from a single source's precursor
emissions.
For areas designated as transitional, marginal, and/or moderate
ozone nonattainment areas, there is no requirement to monitor for the
chemical precursors of ozone. Once an area is designated or
reclassified to serious or above, the state is required to institute a
photochemical assessment monitoring (PAMS) program under CAA section
182(c)(1) and its implementing regulations. PAMS programs require the
seasonal monitoring of VOC and NOX at certain locations in
urban nonattainment areas such as downwind of the area's central
business district (type 2 site) and in the downwind area(s) where
maximum ozone concentrations are expected to occur (type 3 site).
When we reclassified the Phoenix area as serious in 1997, the
design and deployment of a PAMS network became a requirement for the
area. ADEQ has begun the implementation of the area's PAMS network and
has deployed a type 2 site and is in the process of installing a type 3
site at this time. ADEQ's implementation schedule is generally
consistent with our PAMS regulations. These sites are appropriately
located to meet the PAMS siting requirements. The requirement for
operating a PAMS network remains even though we are making a finding
that the Phoenix area has attained the 1-hour ozone NAAQS. Data from
the PAMS network, however, are not and cannot be used in making a
determination of whether or not an area has met the ozone NAAQS because
the network only monitors for ozone precursors and not for ozone
itself.
Comment: ACLPI asserts that Maricopa County's monitoring network is
inadequate because the County fails to operate all of its SLAMS sites
year-round, stating that EPA regulations require states to monitor
ozone at NAMS and SLAMS sites throughout the ozone season and that the
ozone season in Arizona runs from January through December citing 40
CFR part 58, appendix D. ACLPI also claims that despite these
regulations, more than half of the County's SLAMS sites operate only
between April 1 and October 31. While exceedances of the 1-hour ozone
standard may be rare during the winter months, they can occur.
Consequently, there is no assurance that these exceedances would be
captured by one of the annually operating sites due to wide spatial and
temporal differences in ozone concentrations.
Response: We disagree with ACLPI's assertion that the ozone
monitoring network is inadequate because a portion of the monitoring
sites operates on a seasonal basis. Our regulations at 40 CFR 58.25
allow states to make modifications to their SLAMS network with the
approval of EPA. The County made this modification to its operating
schedule with the full concurrence of EPA Region 9 (see letter to Ben
Davis, Air Quality AIRS Program Coordinator,
[[Page 29232]]
MCESD, from John R. Kennedy, Chief, Technical Support Office, Air
Division, U.S. EPA Region 9, November 2, 1999). Moreover, we believe
that the monitoring network, even with the seasonal monitors shut down,
still provides for adequate spatial coverage of the Phoenix
nonattainment area during the winter months. During the five months
(November through March) the County shuts down eight sites--less than
half of the ozone monitoring sites--leaving functional the remaining
ozone network of ten sites operated by the County as well as a number
of special purpose monitoring sites operated by ADEQ. The sites that
are operated seasonally are generally the sites recording the lowest
ozone concentrations.
Regarding the possibility of exceedances of the 1-hour ozone
standard during the November to March period, we have reviewed ozone
data for the Phoenix area during the period 1980 through 1999. In these
19 years, the Phoenix area has had only one exceedance in the month of
April, three in the month of October, and none in the months of
November, December, January, February and March. The vast majority of
ozone exceedances in the Phoenix area occur in the months of June,
July, August, and September when the full network is in operation.
We do agree with ACLPI's statement that ozone air monitoring serves
other purposes besides recording exceedances. We believe that portion
of the network that operates year round provides adequate data for any
other assessment purpose.
B. Attainment Finding for the Phoenix Area
The 1-hour ozone NAAQS is 0.12 parts per million (ppm) not to be
exceeded on average more than one day per year over any three-year
period. 40 CFR 50.9 and appendix H. We determine if an area has
attained the 1-hour standard by calculating, at each monitor, the
average number of days over the standard per year during the preceding
three-year period.\1\ We use all available, quality assured monitoring
data. Under CAA section 181(b)(2)(A), we must base our determination of
attainment or failure to attain on the area's design value as of its
applicable attainment deadline, which for the Phoenix metropolitan area
was November 15, 1999. (See section III.C. for a discussion of air
quality data after November 15, 1999 and consequences of future
violations.)
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\1\ See generally 57 FR 13506 (April 16, 1992) and Memorandum
from D. Kent Berry, Acting Director, Air Quality Management
Division, EPA, to Regional Air Office Directors; ``Procedures for
Processing Bump Ups and Extensions for Marginal Ozone Nonattainment
Areas,'' February 3, 1994 (Berry memorandum). While explicitly
applicable only to marginal areas, the general procedures for
evaluating attainment in this memorandum apply to the Phoenix area
in spite of its serious classification because the finding of
attainment is being made pursuant to the same Clean Air Act
requirements in section 181(b)(2).
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The design value for the Phoenix metropolitan ozone nonattainment
area for the 1997 to 1999 period was 0.113 ppm. The Phoenix
metropolitan area did not record any exceedances of the 1-hour ozone
standard at any monitoring site during the 1997 to 1999 period, so the
average number of days over the standard at each monitor in the area
for that three-year period was zero. The complete documentation of the
monitoring data and design value calculation can be found in the TSD.
Because the area's design value was below the 0.12 ppm 1-hour ozone
standard and the area averaged less than 1 exceedance per year at each
monitor for the 1997 to 1999 period, we find that the Phoenix
metropolitan area attained the 1-hour ozone standard by its Clean Air
Act mandated attainment deadline of November 15, 1999.
III. Applicability of Clean Air Act Planning Requirements
A. EPA's Policy on the Applicability of Certain CAA Planning
Requirements in Areas Attaining the 1-Hour Ozone Standard
CAA section 182(c) requires states with serious ozone nonattainment
areas to comply with the Act's serious area SIP requirements. Three of
these requirements are tied to the attainment demonstration. They are
as follows:
1. A demonstration that this plan will result in emission
reductions of ozone precursors of at least 3 percent per year from 1996
to 1999 (this provision is known as the 9 percent rate of progress
(ROP) plan), CAA section 182(c)(2)(B);
2. A demonstration that the plan will result in attainment of the
1-hour ozone standard as expeditiously as practicable but not later
than November 15, 1999, CAA section 182(c)(2)(A);
3. Contingency measures that will be undertaken if the area fails
to make reasonable further progress, meet a rate of progress milestone,
or to attain the standard by the applicable attainment date, CAA
sections 172(c)(9) and 182(c)(9).
We believe that it is reasonable to interpret the CAA to not
require these provisions for serious ozone nonattainment areas that are
determined to be meeting the 1-hour ozone standard. We discuss our
reasoning in the memorandum from John S. Seitz, Director, OAQPS, EPA,
to Regional Air Directors, entitled ``Reasonable Further Progress,
Attainment Demonstrations, and Related Requirements for Ozone
Nonattainment Areas Meeting the Ozone National Ambient Air Quality
Standard,'' May 10, 1995 (Seitz memo), in the proposal for this action
and below in our response to comments.\2\
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\2\ We have also explained at length in other actions our
rationale for the reasonableness of this interpretation of the Act
and incorporate those explanations by reference here. See 61 FR
20458 (May 7, 1996) (Cleveland-Akron-Lorrain, Ohio); 60 FR 36723
(July 18, 1995) (Salt Lake and Davis Counties, Utah); 60 FR 37366
(July 20, 1995) and 61 FR 31832-33 (June 21, 1996) (Grand Rapids,
MI). Our interpretation has also been upheld by the United States
Court of Appeals for the 10th Circuit in Sierra Club v. EPA, 99 F.3d
1551 (10th Cir. 1996).
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There are a number of other SIP requirements for serious ozone
nonattainment areas that are not tied to whether the area has attained
the 1-hour standard. These elements include an emission inventory of
ozone precursors, reasonably available control technology for major
sources and certain other sources; an enhanced motor vehicle inspection
and maintenance program, and an enhanced ambient monitoring program.
Arizona has already adopted and submitted these elements to us.\3\
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\3\ Serious Area Ozone State Implementation Plan for Maricopa
County; submitted to EPA by the Arizona Department of Environmental
Quality on December 14, 2000,
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B. Response to Comments on EPA's Policy
ACLPI also commented on the proposed determination regarding the
applicability of certain CAA planning requirements to the Phoenix area.
We respond to the most significant of these comments below. Our full
response to all comments can be found in the TSD.
Comment: ACLPI claims that EPA has illegally exempted the Phoenix
area from the 9 percent rate of progress (ROP) \4\ demonstration,
attainment demonstration and contingency measure requirements of the
CAA. To support this contention, ACLPI makes two arguments:
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\4\ Although section 182(b)(1) (moderate areas) and (c)(2)(B)
(serious areas) contain the term ``reasonable further progress,''
EPA often uses the terms ``rate of progress'' and ``reasonable
further progress'' interchangeably.
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(1) that, taken together, sections 172(c) and 182(c) require that a
plan revision for a serious ozone nonattainment area include an
attainment demonstration (sections 172(c)(1) and 182(c)(2)(A)), a 9
percent ROP demonstration (sections 172(c)(2) and 182(c)(2)(B)), and
contingency measures (section 172(c)(9)); and
(2) that the May 10, 1995 policy memorandum on which EPA relies to
[[Page 29233]]
exempt the Phoenix area from these requirements flatly contradicts the
CAA in that the Act contains no exceptions from its planning
requirements for areas that are potentially eligible for redesignation
based on monitoring data but have not yet met the redesignation
requirements of sections 107(d)(3) and 175A. ACLPI contends that under
section 175A of the Act until a nonattainment area is redesignated and
a maintenance plan is approved, the requirements of part D ``shall
continue in force and effect with respect to such area.'' (ACLPI
acknowledges that the United States Court of Appeals for the 10th
Circuit has upheld the May 10, 1995 memorandum but states that the case
was incorrectly decided.)
Response: We proposed to find that these Clean Air Act requirements
are not applicable to the Phoenix area because the area has attained
the 1-hour ozone standard as demonstrated by three consecutive years
without a violation. In the proposal for today's action, we discuss our
determination that the Phoenix area attained the 1-hour ozone standard
by its statutory deadline of November 15, 1999. See 65 FR 31859, 31861.
This determination is documented in section II of the TSD.
The statutory basis for finding that these planning requirements
are not applicable is described in the proposal and in the Seitz memo.
See 65 FR 31859, 31861-31863; Seitz memo at 2-5.
Contrary to ACLPI's assertion, we are not granting the Phoenix area
an exemption from any applicable requirements under part D. Rather, we
have interpreted the requirements of sections 182(c)(2)(A) and (B) and
172(c)(9) as not being applicable once an area has attained the
standard, as long as it continues to do so. (See section III.C. below.)
This is not a waiver of requirements that by their terms clearly apply;
it is a determination that certain requirements are written so as to be
operative only if the area is not attaining the standard. Our
interpretation is consistent both with the CAA's goal of achieving and
maintaining clean air, and with the concomitant policy goal of avoiding
costly and unnecessary emission reductions.
As discussed further below, the plain language of CAA sections
182(c)(2)(A) and (B) and 172(c)(9) does not clearly require attainment,
reasonable further progress or contingency measure plans for areas that
are designated nonattainment but that have already attained, and
continue to attain, the national ozone standard. However, the very
purpose of these plans is to bring areas that are violating the
national ambient air quality standard for ozone into attainment.
Consistent with this purpose, we interpret these requirements as
inapplicable to an area that has attained the standard, but only for so
long as the area remains in attainment. The requirements will again
apply if such an area violates the standard. Thus, our interpretation
is strictly limited to circumstances in which no further emission
reductions are required for attainment.
The language of CAA sections 182(c)(2)(A) and (B) is ambiguous as
to whether VOC reductions are required for serious nonattainment areas
that have already attained the ozone NAAQS, but that have not yet been
redesignated to attainment status. While the lead-in sentence to these
two requirements states that ``* * * the State shall submit a revision
to the applicable implementation plan * * *,'' subsection (c)(2)(A)
calls for a demonstration that the plan will provide for attainment of
the NAAQS ``by the applicable attainment date.'' Subsection (c)(2)(B)
provides that the 9 percent plan ``will result in VOC emissions
reductions * * * until the attainment date.'' Thus, the language of
sections 182(c)(2)(A) and (B) as a whole begs the question of whether
any reductions are required for areas that are already in attainment
and therefore need no reductions in VOC emissions to achieve the ozone
NAAQS by the attainment date.
Section 182(c)(2)(B) is entitled ``Reasonable Further Progress
demonstration.'' The term ``reasonable further progress'' is defined as
``such annual incremental reductions in emissions of the relevant air
pollutant as are required by this part or may reasonably be required by
[EPA] for the purpose of ensuring attainment of the applicable [NAAQS]
by the applicable date.'' CAA section 171(1). This definition applies
for the purposes of part D of title I of the CAA, which includes
section 182(c). Thus, the term ``reasonable further progress'' requires
only such reductions in emissions as are necessary to attain the NAAQS
by the attainment date and no more. Accordingly, our interpretation of
section 182(c)(2)(B) is consistent with the statutory definition of
``reasonable further progress.'' Moreover, our interpretation is
tightly bound to the purpose of section 182(c)(2)(B) because we
interpret that section's requirements to be applicable to areas that
lapse back into violation prior to redesignation, and which therefore
need additional progress towards attainment.
Furthermore, our interpretation of the requirements of section
182(c)(2)(B) is consistent with our interpretation of the general
reasonable further progress requirements of CAA section 172. In the
General Preamble interpreting certain provisions of part I of the CAA
Amendments of 1990, we explained that the reasonable further progress
requirements of CAA section 172(c)(2) do not apply when ``evaluating a
request for redesignation to attainment, since, at a minimum, the air
quality data for the area must show that the area has already attained
[the NAAQS] * * * [and] RFP towards attainment will, therefore, have no
meaning at that point.'' 57 FR at 13564. This interpretation of the
requirements of section 172(c) was made shortly after the CAA
Amendments of 1990 and we have consistently adhered to this
interpretation. See 60 FR at 30190 (noting consistency of
interpretation).
As with the RFP requirement, if an area has in fact monitored
attainment of the standard, we believe there is no need for an area to
make a further submission containing additional measures to achieve
attainment. Thus the attainment demonstration requirement in section
182(c)(2)(A) would no longer apply under these circumstances. Seitz
memo at 3.
We likewise determined that section 172(c)(9) does not require a
contingency measure plan for nonattainment areas, such as Phoenix,
which we determine to have attained the standard prior to
redesignation. The contingency measures plan is required for an area
that ``fails to make reasonable further progress, or to attain the
[NAAQS] by the attainment date * * *'' If, as in the case of Phoenix,
we determine that an area has attained the standard by its attainment
date, then by definition such an area is not one to which contingency
measures apply. There is simply no failure to attain by the attainment
date or make progress for which additional measures need be contingent.
However, as with sections 182(c)(2)(A) and (B), we interpret section
172(c)(9)'s requirements to be applicable to areas that lapse back into
violation prior to redesignation, and that therefore need additional
progress towards attainment. Thus, our interpretation ensures that the
purposes of section 172(c)(9)--to provide for reasonable progress
towards, and the attainment of, clean air--will be served when
necessary.
We also do not agree with ACLPI's contention that the Agency is
violating section 175A(c) when it determines that the RFP, attainment
and contingency measure requirements do not apply to areas that have
attained the NAAQS.
[[Page 29234]]
Section 175A(c) provides that the requirements of part D remain in
force and effect for an area until such time as it is redesignated.
Section 175A(c) does not establish any additional substantive
requirements; rather, it ensures that the requirements that do apply by
virtue of other Act provisions continue to apply until an area is
redesignated. If, however, an Act provision does not apply to an area
or does not require that the particular area in question submit a SIP
revision, section 175A(c) does not somehow add to the requirements with
which the area must comply. In this instance, EPA is interpreting the
underlying substantive requirements at issue so as not to apply to
areas for so long as they continue to attain the standard. This does
not violate section 175A(c); it is an interpretation of the substance
of other provisions of the Act, a matter that is not affected by
section 175A(c). Other requirements that do not depend on whether the
area has attained the standard, such as VOC RACT requirements, continue
to apply, however, and section 175A(c) ensures that they continue to
apply until the area is redesignated.
Finally, in Sierra Club, the Tenth Circuit Court of Appeals upheld
the Seitz memo as it applies to moderate ozone nonattainment areas.
There, pending completion of the redesignation process, and based on
three years of air quality data, EPA found that two Utah Counties that
were designated as nonattainment for ozone and classified as moderate
had attained the ozone NAAQS. As a result, EPA determined that the
CAA's moderate area requirements for attainment and RFP demonstrations,
and contingency measures (sections 182(b)(1)(A) and 172(c)(9)) were
inapplicable. Finding that this determination was a logical extension
of EPA's original, general interpretation in the General Preamble, the
Court accorded deference to EPA's interpretation that once a moderate
ozone nonattainment area has attained the NAAQS, the moderate area CAA
requirements for RFP, attainment and contingency measures no longer
apply. Id. at 1556. Although the Phoenix area is a serious
nonattainment area, there is no doubt that the analogous serious area
provisions serve exactly the same purpose as the provisions at issue in
Sierra Club for moderate areas. Thus the Court's reasoning in that case
applies equally to the Phoenix situation.
Comment: As stated above, ACLPI claims that the Act specifically
requires that until a nonattainment area is redesignated and a
maintenance plan approved the requirements of part D remain in force
and effect with respect to such area, citing CAA section 175A(c). ACLPI
argues that ``Congress determined that in the interest of protecting
public health, EPA should not be permitted to waive nonattainment
planning requirements until states could provide sufficient assurances
that the NAAQS would be permanently maintained'' and that ``it is not
the place of EPA to second guess this policy determination.''
Response: The requirement that states provide sufficient assurances
that the NAAQS will be permanently maintained is a criterion for the
redesignation of an area to attainment under section 107(d)(3)(E) and
not for a finding of attainment under section 181(b)(1). We did not
propose to redesignate the Phoenix area to attainment. Before we can do
that, Arizona will need to provide, among other things, sufficient
assurances in the form of an adequate maintenance plan that the NAAQS
will be ``permanently'' maintained. As we have stated above we are not
waiving these requirements but are determining that by the language of
the CAA, they do not apply.
Comment: ACLPI also argues that there is a sound public policy
reason for the Act's approach because a state's monitored compliance
with a NAAQS may reflect only a temporary improvement in air quality
due to unusually favorable meteorological conditions rather than
``permanent and enforceable reductions in emissions'' of a pollutant or
pollutant precursors.
Response: The requirement to determine that clean air is the result
of ``permanent and enforceable reductions in emissions'' is a criterion
for the redesignation of an area to attainment under section
107(d)(3)(E) and not for a finding of attainment under section
181(b)(1). We did not propose to redesignate the Phoenix area to
attainment.
That aside, we believe that the finding of attainment itself
addresses in part the concern about unusually favorable meteorological
conditions. We have long recognized that meteorological conditions have
a profound effect on ambient ozone concentrations. In setting the
current 1-hour ozone standard in 1979, we changed the form of the
standard, i.e., the criterion for determining attainment, from a
deterministic form ``no more than once per year'' to a statistical form
``when the expected number of days per year is less than or equal to
one'' over a three-year period in order to properly account for the
random nature of meteorological variations. The three-year period for
averaging the expected number of exceedances was a reasoned balance
between evening out meteorological effects and properly addressing real
changes in emission levels. See the proposal and final actions
promulgating the current 1-hour ozone standard at 43 FR 26962, 26968
(June 22, 1978) and 44 FR 8202, 8218 (February 8, 1979).
Moreover, the Phoenix area did not just barely meet the 1-hour
ozone standard; it met the standard with room to spare. An area can
record up to three days of air quality above the 1-hour ozone standard
at any one monitor during a successive three-year period and still be
considered attaining the standard. The Phoenix area fared much better
than that, recording not a single day over the standard at any of its
20 ozone monitors from 1997 through 1999. This record of clean air has
carried into a fourth year. During the 2000 ozone season, the Phoenix
area again did not record a single exceedance of the 1-hour ozone
standard. See TSD at pp. 12-13. The area's design value, which is a
measure of the severity of an area's ozone problem and is used to
establish an area's initial classification, was 10 percent below the
standard and a 16 percent drop from its design value for the preceding
three-year (1994-1996) period.
Furthermore, under EPA's redesignation guidance, there are two
aspects to ``permanent and enforceable emission reductions.'' One is
unusually favorable meteorology. The other is a temporary reduction in
emission rates caused by shutdowns or reduced production due to
temporary adverse economic conditions. See Memorandum, John Calcagni,
Director, Air Quality Management Division (OAQPS), to Regional Air
Directors, ``Procedures for Processing Requests to Redesignate Areas to
Attainment,'' September 4, 1992, page 4. ``Adverse'' is not a term that
could be applied to the economy of the greater Phoenix area over the
last several years.
In addition, we believe that the Phoenix area's record of clean air
can be tied directly to permanent and enforceable emission reductions.
The area is subject to a comprehensive ozone control strategy that
includes national on-road motor vehicle standards, national non-road
engine standards, national consumer product standards, Arizona's
cleaner burning gasoline and vehicle emission inspection programs, and
Maricopa County's industrial and commercial source rules. This strategy
leaves few, if any, sources of VOC unregulated.
Comment: ACLPI claims that EPA implicitly recognizes the
possibility that the Phoenix area may violate the ozone NAAQS again.
However, ACLPI states
[[Page 29235]]
that EPA then dismisses this possibility with the observation that it
can require a SIP revision containing the missing elements if a
violation occurs. ACLPI asserts that this approach will not help
``those who needlessly suffer from unhealthy ozone levels that could
have been avoided through compliance with the Act, noting that SIP
revisions take months, sometimes years to complete.'' Finally, ACLPI
contends that the ``more responsible policy is the one adopted by
Congress which requires states to adhere to the Act's nonattainment
planning requirements until they can demonstrate that redesignation of
an area to attainment is warranted.''
Response: The Seitz memo explicitly addresses the consequences of
future violations of the 1-hour ozone standard. In the proposal for
today's action, we merely described this policy as it would apply to
the Phoenix area if the area were to violate the standard in the
future. While this could be interpreted as acknowledging the
possibility of future violations in the Phoenix area, it is not an
acknowledgment of the probability of future violations.
Furthermore, ozone will continue to be controlled in the Phoenix
area in spite of this finding of attainment and the concurrent finding
that certain CAA planning requirements no longer apply. As noted above,
the State of Arizona and the Maricopa County Environmental Services
Department, the local air pollution control agency, have adopted a
comprehensive ozone control program for the Phoenix area. All these
existing ozone control measures remain in place and these agencies
remain obligated to fully implement and enforce them. Most are SIP-
approved or have been submitted for SIP approval. See appendix A of the
``Serious Area Ozone State Implementation Plan for Maricopa County,''
submitted to EPA on December 14, 2000.
In addition, the area will be the beneficiary of substantial new
controls over the next few years. The two largest source categories of
VOC emissions in the Phoenix area, in order, are gasoline-powered on-
road vehicles and gasoline-powered non-road engines. Several already
adopted state and federal measures will be implemented over the next
few years that will further reduce emissions from these categories.
These measures include Arizona's implementation of the final, more
stringent cut points for the Vehicle Emissions Inspection Program (VEI)
and expansion of that program and the State's Cleaner Burning Gas (CBG)
program into growing areas that surround the core Phoenix urbanized
area. Id.
Nationally, we have issued our tier 2 on-road motor vehicle
standards covering both light duty cars and light duty trucks including
sports utility vehicles. 65 FR 6697 (February 10, 2000). For non-road
engines, we have established emission limitations for new non-road
engines of all types. Many of these standards have tiered emission
standards that become increasingly stringent in future years. See, for
example, the tier 2 standards for small gasoline-powered nonroad
engines at 65 FR 24267 (April 25, 2000).
The Phoenix area will also benefit from national standards on the
VOC content of consumer products required by CAA section 183(e). These
standards control the VOC content of such consumer products as paints,
hair sprays, household pesticides, and miscellaneous other consumer
goods. 63 FR 48819 (September 11, 1998). We also continue to issue
maximum available control technology (MACT) standards under CAA section
112(d) to reduce hazardous air pollutants from stationary sources, most
of which target VOC emissions. 40 CFR part 61.
Finally, we note that under ACLPI's construction of the CAA, the
Phoenix area would face the prospect of mandatory sanctions under CAA
section 179(a) for failing to submit the 9 percent reasonable further
progress, attainment demonstration, and contingency measures plans. For
example, under ACLPI's interpretation of CAA section 182(c)(2)(B),
Arizona would have to adopt controls for the Phoenix area that would
reduce VOC emissions by 9 percent despite the fact that the area has
attained and continues to attain the 1-hour ozone NAAQS. These measures
would impose additional costs upon the area's residents although they
are unnecessary for clean air. Thus, ACLPI's interpretation would not
only require measures that are not necessary for attaining the
standard, it could also lead to sanctions for failing to submit these
measures. EPA's contrary interpretation would not require unnecessary
emission reductions or sanctions for a state's failure to undertake
such reductions.
C. Effects of the Determination on the Phoenix Area and of a Future
Violation on This Determination
During the 2000 ozone season, the Phoenix area continued its record
of clean air, experiencing no exceedances of the 1-hour ozone standard.
In short, the area remains in attainment of the 1-hour ozone standard
as of the date of this final action. Based on our finding that the
Phoenix metropolitan area is attaining the 1-hour ozone standard, we
are finding that the State of Arizona is no longer required to submit a
9 percent ROP plan, an attainment demonstration, or contingency
measures for the area.
The lack of a requirement to submit these SIP revisions will exist
only as long as the Phoenix metropolitan area continues to attain the
1-hour ozone standard. If we subsequently determine that the Phoenix
area has violated the 1-hour ozone standard (prior to a redesignation
to attainment), the basis for the determination that the area need not
make these SIP revisions would no longer exist. Thus, a determination
that an area need not submit these SIP revisions amounts to no more
than a suspension of the requirements for so long as the area continues
to attain the standard.
Should the Phoenix metropolitan area begin to violate the 1-hour
standard, we will notify Arizona that we have determined that the area
is no longer attaining the 1-hour standard. We also will provide notice
to the public in the Federal Register. Once we determine that the area
is no longer attaining the 1-hour ozone standard then Arizona will be
required to address the pertinent SIP requirements within a reasonable
amount of time. We will set the deadline for the State to submit the
required SIP revisions at the time we make a nonattainment finding.
Arizona must continue to operate an appropriate air quality
monitoring network, in accordance with 40 CFR part 58, to verify the
attainment status of the area. The air quality data relied upon to
determine that the area is attaining the ozone standard must be
consistent with 40 CFR part 58 requirements and other relevant EPA
guidance.
D. Effect of the Determination on Transportation Conformity
CAA section 176(c) requires that federally funded or approved
transportation actions in nonattainment areas ``conform'' to the area's
air quality plans. Conformity ensures that federal transportation
actions do not worsen an area's air quality or interfere with its
meeting the air quality standards.
One of the primary tests for conformity is to show that
transportation plans and improvement programs will not cause motor
vehicle emissions to rise above the levels needed for progress toward
and attainment with the air quality standards. These motor vehicle
emissions levels are set in an area's attainment, maintenance, and/or
RFP demonstration and are known as the ``transportation conformity
budget.''
EPA set the current ozone conformity budget for the Phoenix
metropolitan
[[Page 29236]]
area in our revised federal 15 percent ROP plan. 64 FR 36243 (July 6,
1999). Today's finding (i.e., that the Phoenix area has attained the 1-
hour ozone standard and that the State no longer needs to submit
attainment and ROP/RFP demonstrations) will not affect the continued
applicability of the existing budget. This budget will remain
applicable until Arizona submits a maintenance demonstration with a
revised transportation conformity budget (or until Arizona submits
attainment and RFP/ROP demonstrations with a revised budget should the
Phoenix area again violate the 1-hour ozone standard) and we find the
new budget adequate.
IV. Administrative Requirements
This action merely finds that the Phoenix area has attained a
previously established national ambient air quality standard based on
an objective review of measured air quality data. It also determines
that certain Clean Air Act requirements no longer apply to the Phoenix
area because of the attainment finding. It will not impose any new
regulations, mandates, or additional enforceable duties on any public,
nongovernmental or private entity. 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.). Under Executive Order 12866, Regulatory
Planning and Review (58 FR 51735, October 4, 1993), this rule is not a
``significant regulatory action'' and therefore is not subject to
review by the Office of Management and Budget. It does not contain any
unfunded mandate or significantly or uniquely affects small
governments, as described in the Unfunded Mandates Reform Act of 1995
(Public Law 104-4). This rule also does 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 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, Federalism (64 FR
43255, August 10, 1999) because it 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.
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
because it would be inconsistent with applicable law for EPA, when
determining the attainment status of an area, to use voluntary
consensus standards in place of promulgated air quality standards and
monitoring procedures that otherwise satisfy the provisions of the
Clean Air Act. As required by section 3 of Executive Order 12988, Civil
Justice Reform (61 FR 4729, February 7, 1996), in issuing this rule,
EPA has taken the necessary steps to eliminate drafting errors and
ambiguity, minimize potential litigation, and provide a clear legal
standard for affected conduct. EPA has complied with Executive Order
12630, Governmental Actions and Interference with Constitutionally
Protected Property Rights (53 FR 8859, March 15, 1988) by examining the
takings implications of the rule in accordance with the ``Attorney
General's Supplemental Guidelines for the Evaluation of Risk and
Avoidance of Unanticipated Takings'' issued under the executive order.
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 July 30, 2001.
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 81
Environmental protection, Air pollution control, Intergovernmental
relations, Ozone, Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401-7671q.
Dated: May 14, 2001.
Laura Yoshii,
Acting Regional Administrator, Region 9.
[FR Doc. 01-13512 Filed 5-29-01; 8:45 am]
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