98-20147. Promulgation of Federal Implementation Plan for ArizonaPhoenix PM-10 Moderate Area; Disapproval of State Implementation Plan for ArizonaPhoenix PM-10 Moderate Area  

  • [Federal Register Volume 63, Number 148 (Monday, August 3, 1998)]
    [Rules and Regulations]
    [Pages 41326-41356]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 98-20147]
    
    
    
    [[Page 41325]]
    
    _______________________________________________________________________
    
    Part II
    
    
    
    
    
    Environmental Protection Agency
    
    
    
    
    
    _______________________________________________________________________
    
    
    
    40 CFR Part 52
    
    
    
    Promulgation of Federal Implementation Plan for Arizona; Phoenix PM-10 
    Moderate Area; Disapproval of State Implementation Plan for Arizona; 
    Phoenix PM-10 Moderate Area; Final Rule
    
    Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 / Rules 
    and Regulations
    
    [[Page 41326]]
    
    
    
    ENVIRONMENTAL PROTECTION AGENCY
    
    40 CFR Part 52
    
    [FRL-6131-6]
    RIN 2060-ZA02
    
    
    Promulgation of Federal Implementation Plan for Arizona--Phoenix 
    PM-10 Moderate Area; Disapproval of State Implementation Plan for 
    Arizona--Phoenix PM-10 Moderate Area
    
    AGENCY: Environmental Protection Agency (EPA).
    
    ACTION: Final rule.
    
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    SUMMARY: Under the authority of section 110(c)(1) of the Clean Air Act 
    (CAA or ``the Act''), EPA is today promulgating a federal 
    implementation plan (FIP) to address the moderate area PM-10 
    requirements for the Phoenix PM-10 nonattainment area. Specifically, 
    for both the annual and 24-hour PM-10 standards, EPA is promulgating a 
    demonstration that reasonably available control measures (RACM) will be 
    implemented as soon as possible, a demonstration that it is 
    impracticable for the area to attain the standards by the statutory 
    attainment deadline and a demonstration that reasonable further 
    progress (RFP) is being met.
        As part of the FIP, EPA is promulgating a fugitive dust rule to 
    control PM-10 emissions from vacant lots, unpaved parking lots and 
    unpaved roads, and is also promulgating an enforceable commitment to 
    ensure that RACM for agricultural sources will be proposed by September 
    1999, finalized by April 2000 and implemented by June 2000.
        In addition, EPA is today finalizing its disapproval of the Arizona 
    moderate area plan's RACM, RFP and impracticability, demonstrations 
    because those demonstrations do not adequately address the Act's 
    moderate area PM-10 requirements.
        EPA recently established a new standard for PM-2.5 and also revised 
    the PM-10 standards; however, today's action does not address those 
    standards.
    
    EFFECTIVE DATES: The FIP and SIP actions in this document are effective 
    on September 2, 1998.
    
    ADDRESSES: A copy of the docket no. A-09-98, containing material 
    relevant to EPA's proposed and final actions, is available for review 
    at: EPA Region 9, Air Division, 75 Hawthorne Street, San Francisco, 
    California 94105. Interested persons may make an appointment with 
    Eleanor Kaplan (415) 744-1159 to inspect the docket at EPA's San 
    Francisco office on weekdays between 9 a.m. and 4 p.m.
        A copy of the docket no. A-09-98 is also available to review at the 
    Arizona Department of Environmental Quality, Library, 3033 N. Central 
    Avenue, Phoenix, Arizona 85012, (602) 207-2217, and at the EPA Air 
    Docket Section, Waterside Mall, Room M-1500, 401 M Street, S.W., 
    Washington, D.C. 20460, (202) 260-7549.
    
    FOR FURTHER INFORMATION CONTACT: For questions and issues regarding the 
    final measure for agricultural fields and aprons contact John Ungvarsky 
    (415) 744-1286; for questions and issues regarding the final rule for 
    unpaved parking lots, unpaved roads and vacant lots contact Karen Irwin 
    (415) 744-1903; and for other general FIP and SIP questions and issues 
    contact Doris Lo (415) 744-1287.
    
    SUPPLEMENTARY INFORMATION:
    
    Table of Contents
    
    I. Executive Summary
        A. Background
        B. Public Involvement in the FIP Process
        C. The Final FIP
    II. Background
        A. SIP/FIP Background
        B. Summary of SIP/FIP Proposal
    III. Disapproval of Arizona's Moderate Area PM-10 Plan
    IV. Final FIP
        A. RACM/RACT Demonstration
        1. RACT and PM-10 Precursors
        2. RACM Demonstration
        B. FIP Measures
        1. Commitment for Agricultural Sector
        2. Rule for Unpaved Parking Lots, Unpaved Roads and Vacant Lots
        a. Background
        b. Summary of Changes to the Proposed FIP Rule
        c. Public Comments and EPA Responses
        C. Impracticability Demonstration
        1. Annual Standard
        2. 24-hour Standard
        D. Reasonable Further Progress Demonstrations
        1. Revised RFP Demonstration
        a. Annual Standard
        b. 24-hour Standard
        i. Gilbert Monitoring Site
        ii. West Chandler Monitoring Site
        2. Response to Comments on RFP Demonstrations
        E. Indian Reservations
    V. Administrative Requirements
        A. Executive Order (E.O.) 12866
        B. Regulatory Flexibility Act Analysis
        1. Regulatory Flexibility Act Requirements
        2. RFA Analysis
        a. Federal Rule for Unpaved Roads, Unpaved Parking Lots and 
    Vacant Lots
        b. Federal Commitment for Agriculture c. Certification
        C. Unfunded Mandates Reform Act (UMRA)
        D. Paperwork Reduction Act (PRA)
        E. Executive Order 13045: Protection of Children from 
    Environmental Health Risks and Safety Risks
        F. Submission to Congress and the General Accounting Office
        G. Petitions for Judicial Review
    
    I. Executive Summary
    
    A. Background
    
        The Phoenix area violates both the annual and 24-hour national air 
    quality standards for particulate matter with diameters of 10 microns 
    or less (PM-10). Particulate matter affects the respiratory system and 
    can cause damage to lung tissue and premature death. The elderly, 
    children, and people with chronic lung disease, influenza, or asthma 
    are especially sensitive to high levels of particulate matter. EPA 
    recently established a new standard for particulate matter with 
    diameters of 2.5 microns or less and revised the PM-10 standards. 
    However, EPA also retained the pre-existing PM-10 standards for a 
    limited amount of time. Today's action only addresses those pre-
    existing PM-10 standards.
        The primary cause of the PM-10 problem in the Phoenix area is dust 
    on paved roads kicked up by vehicle traffic, and windblown dust from 
    construction sites, earth moving operations, unpaved parking lots and 
    roads, disturbed vacant lots, agricultural fields and aprons, and other 
    disturbed areas.
        When an area violates an air quality standard, the Clean Air Act 
    (CAA) requires that the area be designated as nonattainment for that 
    pollutant. Phoenix was originally designated and classified as a 
    moderate nonattainment area for particulate matter, and Arizona was 
    required to develop a plan that put into place a basic set of control 
    measures. These measures did not adequately control the particulate 
    pollution problem. When the area failed to attain the standards in 1994 
    it was reclassified as a serious nonattainment area, and the State is 
    now required to develop a plan with more comprehensive control 
    measures.
        Despite the fact that the State is now working on its serious area 
    plan, EPA is under court order, as a result of a lawsuit by the Arizona 
    Center for Law in the Public Interest (ACLPI), to develop a moderate 
    area federal implementation plan (FIP) for the Maricopa area. EPA is 
    required to prepare this FIP because the State does not have an 
    approved moderate area plan. Under the court order, EPA was required to 
    issue the FIP by July 18, 1998.
        In its FIP proposal (63 FR 15920; April 1, 1998), EPA determined 
    that not all the basic controls on sources contributing to violations 
    of the particulate standards were in place. While the State had 
    implemented a
    
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    number of measures, including controls on construction and earth moving 
    operations, there remained a need for additional emissions reductions. 
    Having considered its authority and resource constraints, EPA proposed 
    two measures in that rulemaking for the control of dust from unpaved 
    roads, parking lots, and vacant lots and agricultural fields and 
    aprons. Specifically, EPA proposed a fugitive dust rule and an 
    enforceable commitment in regulatory form to implement control measures 
    for agricultural PM-10 sources by June 2000. These measures will 
    contribute to the eventual attainment of both the annual and 24-hour 
    PM-10 standards. EPA received comments from the public on the FIP 
    proposal and has made changes to the proposed FIP rule for fugitive 
    dust sources that it is finalizing today.
        The State now intends to submit its serious area particulate plan 
    in December of 1998. If the plan includes control measures for the 
    sources covered by the FIP and those measures are approved by EPA, the 
    Agency will be able to withdraw the final FIP measures. EPA will 
    continue working with the appropriate State and local agencies, as well 
    as the agricultural community and the cities in the metropolitan area, 
    to replace the FIP measures with State measures. EPA believes that 
    clean air is likely to be achieved faster, and in greater harmony with 
    local economic and community goals, if its role as a backstop is 
    minimized by effective State and local actions. Because of the 
    willingness of the State and local communities to identify and pursue 
    solutions to their air quality problems, as evidenced by the Governor's 
    Air Quality Strategies Task Force and the recently adopted Air Quality 
    Measures Bill (SB 1427), EPA expects successful State and local action.
    
    B. Public Involvement in the FIP Process
    
        On April 16, 1998, EPA held a workshop and public hearing on its 
    proposal in Phoenix. The workshop provided an opportunity for EPA to 
    explain to the community why the Agency is imposing this FIP, what 
    measures are included in the FIP, and who will potentially be impacted 
    by the FIP. The workshop also provided the community the opportunity to 
    ask questions of EPA, and to make suggestions with respect to its 
    proposed action. Following the workshop, EPA took formal testimony at a 
    public hearing on the FIP proposal. In addition to the hearing 
    testimony, EPA received 18 comment letters on the proposed FIP.
        The comments generally fell into two categories. Environmental and 
    health organizations supported the dust rule, but commented that the 
    FIP did not impose enough PM-10 controls for other source categories in 
    the Phoenix PM-10 nonattainment area. On the other hand, several of the 
    local jurisdictions and regulatory agencies commented that the FIP-
    imposed controls were too stringent. EPA evaluated all the comments, 
    did additional fieldwork and technical analysis, and revised the FIP 
    accordingly.
    
    C. The Final FIP
    
        In response to public comments, EPA revised the fugitive dust rule, 
    but did not change the enforceable commitment for agriculture.
    Fugitive Dust Rule
        Although EPA has approved a Maricopa County rule (MCESD Rule 310) 
    which requires controls for unpaved roads, unpaved parking lots and 
    vacant lots, the County is not adequately enforcing its rule for these 
    three sources due to lack of resources. Consequently, EPA promulgated a 
    FIP rule for these sources. EPA's fugitive dust rule is intended to 
    establish basic levels of control that are substantially equivalent to 
    those established by Maricopa County Rule 310. The primary difference 
    between the FIP rule and Rule 310 is the greater specificity and detail 
    regarding which control measures are appropriate for which sources. For 
    each source category, the FIP rule includes three to four control 
    measure options and allows alternative control measures.
        In order to effectively implement the FIP rule, EPA is providing 
    additional inspection resources to the Maricopa County Environmental 
    Services Department (MCESD) through a CAA section 105 grant. EPA will 
    rely on these resources to assist the Agency in verifying compliance 
    with the FIP rule. In order to remove the FIP requirement, MCESD will 
    have to submit to EPA a credible implementation strategy for Rule 310, 
    including the provision of its own additional inspection and 
    enforcement resources that are not provided under an EPA grant. It is 
    EPA's understanding that MCESD is trying to obtain these additional 
    resources. EPA will continue working with the County to assist that 
    effort so that the FIP rule can eventually be rescinded.
        Until the FIP is rescinded, however, EPA intends to work 
    cooperatively with MCESD to inform the regulated community of the FIP 
    rule's requirements. EPA plans to provide compliance assistance through 
    informational brochures, toll free numbers and internet access. These 
    tools will help EPA disseminate as much information as possible to the 
    public. As new information becomes available, including alternative 
    control measures that are being developed by regulated parties to 
    comply with the rule, EPA will collaboratively work with these 
    regulated parties to provide information to the public.
        EPA would like to clarify the Agency's position with respect to a 
    major issue that was raised by several commenters on the proposed 
    fugitive dust rule. These commenters believe that the FIP rule requires 
    a more stringent level of control than Maricopa County Rule 310 and 
    that, consequently, EPA is imposing an additional economic burden on 
    local municipalities, and others impacted by the FIP rule. EPA believes 
    that the FIP rule does not impose any additional compliance burden 
    beyond that required by Rule 310. Because EPA will fully enforce the 
    FIP rule, which has not occurred under Rule 310, regulated entities who 
    have not been in compliance with existing requirements to date will 
    need to spend the resources necessary to come into compliance. This is 
    not an additional economic burden, but rather one that some members of 
    the regulated community have deferred. However, should EPA receive new 
    information in the future that indicates that the FIP controls are more 
    stringent than those required by the Clean Air Act, the Agency will 
    propose appropriate revisions to the FIP.
    Enforceable Commitment for Agriculture
        As mentioned above, EPA has approved Maricopa County Rule 310 which 
    requires control of fugitive dust sources, including agricultural 
    sources. However, MCESD is not ensuring adequate enforcement of the 
    rule for agricultural fields and aprons. Therefore, EPA is promulgating 
    an enforceable commitment in regulatory form for the FIP that requires 
    EPA to propose controls on agricultural sources by September 1999 and 
    implement these controls by June 2000. The enforceable commitment has 
    not changed from the April 1, 1998 proposal. In discussions with key 
    stakeholders, general agreement was reached that these controls will be 
    in the form of best management practices. EPA believes that this 
    approach will ensure successful dust control in Maricopa's unique 
    environment. We have worked closely with the Phoenix
    
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    farming community to develop this commitment, and their comments on the 
    proposal support it.
        In order to remove the FIP requirements, the State will need to 
    submit and receive approval of a SIP measure that replaces the 
    enforceable commitment. In fact, the Arizona legislature has passed, 
    and Governor Hull has signed, the legislative language needed to 
    establish a state process to develop best management practices for 
    control of PM-10. EPA expects to receive this legislative language as a 
    SIP revision very shortly and will act on it expeditiously.
    Tribal Issues
        There are three Indian reservations located within the Phoenix 
    nonattainment area. However, since this FIP is designed to fill a gap 
    that exists in the State plan which does not apply to sources within 
    Indian country, EPA has not included Indian reservations in this FIP. 
    All three tribes have expressed an interest in developing air quality 
    programs. EPA will develop the data, in cooperation with the tribes, 
    that is needed to properly assess whether controls are required to 
    attain the standards. EPA will ensure that controls are implemented 
    either through EPA-approved tribal measures or, if necessary, federal 
    measures.
    Conclusion
        EPA appreciates the comments that were made on the proposed FIP and 
    will continue to work with the community as the Agency moves forward to 
    implement the FIP measures. EPA will also continue to work with the 
    community on the development of the State's serious area plan. EPA is 
    hopeful that the local planning effort will result in an approvable SIP 
    that will allow EPA to withdraw its FIP.
    
    II. Background
    
    A. SIP/FIP Background
    
        Today's federal implementation plan (FIP) is the result of over six 
    years of planning and litigation regarding the control of PM-10 
    emissions in the Phoenix area. On November 15, 1991, as required by the 
    CAA, the State of Arizona submitted to EPA a moderate area PM-10 state 
    implementation plan (SIP). EPA found that plan to be incomplete and, as 
    a result, the State revised and resubmitted it on March 3, 1994. On 
    April 10, 1995, EPA approved the revised plan which included reasonably 
    available control measure (RACM) and reasonable further progress (RFP) 
    demonstrations, and a demonstration that it was impracticable for the 
    Phoenix area to attain the PM-10 national ambient air quality standards 
    (NAAQS) by the statutory deadline of December 31, 1994.
        On May 1, 1996, the Arizona Center for Law in the Public Interest 
    (ACLPI) filed in the United States Court of Appeals for the Ninth 
    Circuit a petition for review of EPA's April 10, 1995 approval of the 
    State's PM-10 moderate area plan. On May 14, 1996, the Ninth Circuit 
    vacated EPA's approval of the plan for failing to adequately address 
    the moderate area PM-10 requirements. Ober v. EPA, 84 F.3d 304 (9th 
    Cir. 1996). Specifically, the Ninth Circuit found that the State's plan 
    failed to meet the CAA's requirements for attainment, RFP and RACM for 
    the 24-hour PM-10 standard and that EPA had failed to provide a 
    sufficient opportunity for public comment on the RFP and RACM 
    demonstrations for the annual PM-10 standard.
        As a result of the Ninth Circuit's ruling, EPA instructed the State 
    of Arizona to submit by May 9, 1997 a plan addressing the Act's 
    moderate area requirements for the 24-hour PM-10 standard at certain 
    specified monitoring sites and to submit, by December 10, 1997, a full 
    regional plan addressing those requirements for both the 24-hour and 
    annual PM-10 standards.1
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        \1\ As a result of the litigation and the reclassification of 
    the Phoenix area as a serious PM-10 nonattainment area, both plans 
    were also required to address the best available control measure 
    (BACM), RFP and attainment requirements in the CAA for serious 
    areas.
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        Arizona submitted its 24-hour plan 2 (known as the 
    microscale plan) on May 9, 1997. On August 4, 1997, EPA approved the 
    microscale plan in part and disapproved it in part. 62 FR 41856. The 
    State has not yet submitted the full regional plan, but has indicated 
    that it intends to do so in December 1998.
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        \2\ Plan for Attainment of the 24-Hour PM-10 Standard, Maricopa 
    County PM-10 Nonattainment Area, Final. ADEQ, May 1997.
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        Because EPA was unable to fully approve the State's microscale 
    plan, the Agency is required by a U.S. District Court order to 
    promulgate a FIP by July 18, 1998 that addresses the CAA's moderate 
    area requirements for RACM, RFP and attainment for both the 24-hour and 
    annual standards. Ober v. Browner, CIV 94-1318 PHX PGR (D. 
    Ariz.).3
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        \3\ The Arizona Center for Law In the Public Interest (ACLPI), 
    representing the plaintiffs in Ober, in a comment on the FIP 
    proposal, contends that the proposed FIP does not contain 
    contingency measures as required by section 172(c)(9) of the CAA. 
    EPA disagrees. In today's final FIP, EPA is fulfilling an obligation 
    under the consent decree in the district court Ober case that 
    specifically requires the Agency to promulgate a federal plan for 
    Phoenix that meets the moderate area RACM requirement in CAA section 
    189(a)(1)(C), RFP requirement in section 172(c)(2) or 189(c)(1), and 
    attainment requirement in section 189(a)(1)(B) of the Clean Air Act. 
    See paragraph 6 of the Modified Second Consent Decree. EPA's 
    obligation under the Ober decree does not extend to the section 
    172(c)(9) contingency measures. The section 172(c)(9) contingency 
    measure requirement is a separate and distinct statutory requirement 
    and is not an integral part of RFP or attainment demonstrations 
    under part D of the CAA. See, e.g., 57 FR 13498, 13543 (April 16, 
    1992) and 61 FR 51599, 51607 (October 6, 1996). See also footnote 1 
    in EPA's orginal proposed approval of the State moderate area PM-10 
    plan for the Phoenix area, 59 FR 38402 (July 28, 1994).
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    B. Summary of SIP/FIP Proposal
    
        On April 1, 1998, EPA proposed a FIP for the Phoenix PM-10 
    nonattainment area that was published in the Federal Register at 63 FR 
    15920. The proposed FIP included a demonstration that all RACM are 
    being implemented, a demonstration that it is impracticable to attain 
    the PM-10 standards with the implementation of all RACM and a 
    demonstration that RFP in emissions reductions is being made.
        As part of its proposed RACM demonstration, EPA proposed a fugitive 
    dust rule to control PM-10 emissions from vacant lots, unpaved parking 
    lots and unpaved roads, and an enforceable commitment to ensure that 
    RACM for agricultural sources will be proposed by September 1999, 
    finalized by April 2000 and implemented by June 2000. Further detail on 
    the proposed rule and commitment is provided in connection with the 
    discussion of EPA's final actions in section IV. below and in the 
    proposed rulemaking at 63 FR 15920, 15935.
        On April 1, 1998, EPA also withdrew a 1996 proposed action to 
    restore its approval of portions of the State's moderate area SIP for 
    the annual standard and proposed to disapprove the RACM and 
    impracticability demonstrations in Arizona's moderate area plan because 
    those demonstrations do not adequately address the Act's moderate area 
    PM-10 requirements. Further discussion of the SIP actions is provided 
    in section III. below and in the proposed rulemaking at 63 FR 15920, 
    15925.
        EPA received 18 public comment letters from a wide range of parties 
    including private citizens, state and local agencies, industry 
    representatives, and environmentalists. EPA also held a public hearing 
    on the proposed FIP in Phoenix at which 7 groups or individuals 
    testified. Copies of the comment letters and the transcript of the 
    public hearing can be found in the docket for this rulemaking.
    
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    III. Disapproval of Arizona's Moderate Area PM-10 Plan
    
        In its proposed action for this rulemaking, EPA withdrew its 
    earlier proposal at 61 FR 54972 (October 23, 1996) to restore the 
    Agency's approval of Arizona's moderate area PM-10 plan for the Phoenix 
    nonattainment area.4 At the same time, EPA proposed to 
    disapprove the RACM demonstration and the demonstration that attainment 
    by the moderate area attainment deadline was impracticable in the 
    State's moderate area plan. See 63 FR 15920, 15925-15926. EPA is today 
    taking final action to disapprove that plan.
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        \4\ EPA received one public comment from ACLPI which supported 
    EPA's withdrawal of its prior proposal to restore the approval of 
    the State's moderate area SIP as well as the RACM and 
    impracticability demonstrations therein.
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        The CAA establishes specific consequences if EPA finds that a state 
    has failed to meet certain requirements of the CAA. Of particular 
    relevance here is CAA section 179(a)(1), the mandatory sanctions 
    provision. Section 179(a) sets forth four findings that form the basis 
    for application of a sanction, including disapproval by EPA of a 
    State's submission based on its failure to meet one or more required 
    CAA elements. EPA has issued a regulation, codified at 40 CFR 51.31, 
    interpreting the application of sanctions under section 179 (a) and 
    (b).
        Generally, if EPA has not approved a revised SIP revision 
    correcting the deficiency, 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. Similarly, if EPA has still not approved a SIP 
    revision correcting the deficiency 6 months after the offset sanction 
    is imposed, then the highway funding sanction will apply in the 
    affected area, in accordance with 40 CFR 52.31.5 In 
    addition, CAA section 110(c)(1) provides that EPA must promulgate a FIP 
    no later than 2 years after a finding under section 179(a) unless EPA 
    takes final action to approve the revised plan correcting the 
    deficiency within 2 years of EPA's findings.
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        \5\ 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 39859 (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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        There are, however, certain exceptions to the general rule for the 
    application of sanctions described above. The reader is referred to 40 
    CFR 52.31(d) for the circumstances under which the application of 
    sanctions may be stayed or deferred.
    
    IV. Final FIP
    
    A. RACM/RACT Demonstration
    
    1. RACT and PM-10 Precursors
        In its proposed rulemaking, EPA determined that the SIP already 
    included reasonably available control technology (RACT) for major 
    sources of PM-10 and that the FIP did not need to further address this 
    requirement. See 63 FR 15920, 15927. No comments were received on this 
    determination.
        EPA also proposed to find, based on existing modeling, that major 
    stationary sources of PM-10 precursors do not contribute significantly 
    to PM-10 levels in the Maricopa area which exceed the PM-10 air quality 
    standards, and therefore, RACT on these major sources is not required 
    under CAA section 189(e). See 63 FR 15920, 15928. Under CAA section 
    189(e), the control requirements applicable to major stationary sources 
    of PM-10 must also be applied to major stationary sources of PM-10 
    precursors, unless EPA determines such sources do not contribute 
    significantly to PM-10 levels in excess of the standards in the area. 
    EPA received one comment, addressed below, on this proposed finding.
        Comment: ACLPI asserts that EPA's proposal to waive the RACT 
    requirement for major sources of PM-10 precursors on the ground that 
    such sources do not significantly contribute to PM-10 levels is flawed 
    because: (1) it is based on unapproved, draft modeling; (2) it is based 
    on the unsupported and unwarranted assumption that major source 
    contributions to secondary particulate levels are proportional to their 
    presence in the inventory; and (3) it is based on the use of 
    ``significance'' levels from the Act's new source review program, which 
    are not automatically transferrable to determinations under CAA section 
    189(e).
        Response: EPA used the State's modeling as the technical basis for 
    this FIP. As such, the modeling was subject to public comment as part 
    of the FIP proposal and did not require a prior CAA section 110(k) 
    approval for EPA to use it.
        Given the very small presence of major stationary sources in the 
    precursor inventory (less than 7 percent of the entire precursor 
    inventory is from major stationary sources), assuming a linear 
    relationship between major stationary source emissions and their impact 
    on ambient secondary concentrations is reasonable. EPA estimated that 
    major stationary sources contribute 0.6 g/m\3\ to exceedances 
    of the 24-hour standard and 0.3 g/m\3\ to exceedances of the 
    annual standard, so even if major stationary sources contribute to 
    secondary particulate formation at 2 to 3 times their presence in the 
    inventory, they would still be an insignificant source of PM-10 in the 
    Maricopa area.
        The use of significance levels from the new source review program 
    to determine if a source contributes significantly to PM-10 levels in 
    excess of the air quality standards in the Phoenix area is discussed in 
    the next section.
    2. RACM Demonstration
        In order to determine which RACM to include in the FIP, EPA first 
    identified a list of 99 potential control measures. See Table 1 in the 
    proposed rulemaking (63 FR 15920, 15929). This list of measures was 
    taken from the list of measures developed for the State's 1991 moderate 
    area plan and included the measures found in EPA's guidance 
    6 as well as measures recommended by the Maricopa air 
    agencies and in public comments on the State's moderate area SIP. Nine 
    additional potential measures were recommended during the public 
    comment period on FIP: the California Air Resources Board's diesel fuel 
    standards, a mandatory roadside testing program for diesels, enhanced 
    diesel inspection and maintenance (I/M), accelerated replacement/
    retrofit of pre-1988 heavy duty diesel commercial vehicles, retrofit 
    existing diesel vehicles (for example, with catalysts), California's 
    off-road vehicle and engine standards, California's low emission 
    vehicle standards, continuing expansion of the enforcement of Rule 310, 
    and a smoking vehicle identification and repair program. See Letter, 
    ACLPI to EPA, Region 9, May 18, 1998, p. 4 and Public Hearing to 
    Comment on the Proposed FIP, Reporter's Transcript of Proceedings, p. 
    7-10 (12:00 p.m. session), p. 5-9 (7:00 p.m. session). EPA added these 
    nine additional measures to its list of 99, for a total of 108 
    potential measures.
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        \6\ See 57 FR 18070, 18072 (Appendix C) (April 28, 1992).
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        Before evaluating the measures as RACM, EPA screened the list to 
    determine which measures were applicable to the Phoenix area and for 
    which EPA had legal authority. EPA then screened the list to determine
    
    [[Page 41330]]
    
    which measures it has already approved as State RACM or adopted at the 
    federal level and considers RACM. Where EPA had already determined a 
    measure to be RACM, no further analysis of the measure was necessary. 
    Finally, the Agency evaluated the resulting shorter list of measures 
    based on EPA's RACM criteria 7 to identify which measures 
    constituted RACM for the Phoenix area. These three criteria are de 
    minimis source category, technical feasibility (including when the 
    measure could be implemented), and cost of implementation. For any RACM 
    rejected for reasons of technology, cost, size of source category or 
    timing of implementation, the Agency provided a reasoned justification. 
    In all, eleven measures addressing fugitive dust from unpaved roads, 
    unpaved parking lots, disturbed cleared land, and agriculture remained 
    after the application of the RACM criteria.8
    ---------------------------------------------------------------------------
    
        \7\ See 57 FR 13498, 13540 (April 16, 1992).
        \8\ Seven of the additional measures proposed in public comment 
    are controls for diesel or gasoline on-road tailpipe emissions. 
    Because diesel and gasoline tailpipe emissions are de minimis source 
    categories for purposes of PM-10 RACM in Maricopa County, EPA has 
    determined that the seven measures do not constitute RACM for the 
    Phoenix area. One measure, California's non-road engine standards, 
    would control non-road engine emissions. As noted in the RACM 
    Technical Support Document (TSD) for the proposal (p. 8), EPA 
    promulgated non-road engine standards in 1995 and considers these 
    national standards to be RACM. Because RACM has already been adopted 
    for this category, EPA does not need to further evaluate measures, 
    such as the California standards, for this category. See 63 FR 
    15920, 15929. Because the FIP rule controls the same sources as Rule 
    310, it effectively operates to expand enforcement of the rule.
    ---------------------------------------------------------------------------
    
        A complete description of EPA's approach to determining RACM can be 
    found in the proposed rulemaking at 63 FR 15920, 15928. The results of 
    the initial RACM evaluation are presented in Table 3 of the proposed 
    rulemaking. See 63 FR 15920, 15933. The results of the final RACM 
    evaluation and a detailed evaluation of each measure including the 
    reasoned justification if the measure was rejected is in the final RACM 
    TSD.
        EPA received several comments on the RACM demonstration and 
    responds to the most significant below. EPA has responded to all 
    comments in the TSD.
        Comment: ACLPI comments that the Center disagrees with EPA's 
    proposal for exempting de minimis source categories from the RACM 
    requirement of the CAA. ACLPI asserts that there is no authority in the 
    Act for such an exemption, and that EPA's position that de minimis 
    source categories need only be controlled to the level necessary to 
    produce RFP and timely attainment illegally reads the RACM requirement 
    out of the Act as to such sources.
        Response: The CAA does not define ``reasonably available control 
    measure.'' Because the statute is silent, EPA has the discretion to 
    develop a reasonable interpretation. Chevron U.S.A. Inc. v. NRDC, 467 
    U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). In 1992 preliminary 
    guidance (General Preamble), EPA set forth the criteria for states to 
    apply in determining RACM and reasonably available control technology 
    (RACT) in PM-10 moderate area SIPs. Among other criteria, if a state 
    could show that a measure was unreasonable because the emissions from 
    the affected source would be insignificant, i.e., de minimis, such a 
    measure could be excluded from further consideration. See 57 FR 13498, 
    13540. Moreover, EPA believes that determining the reasonableness of a 
    measure based on the degree to which the regulated source contributes 
    to the problem is consistent with the RACM/RACT requirements of CAA 
    sections 189(a)(1)(C) and 172(c)(1). Additionally, RACT is generally 
    only required for major point sources; i.e., sources above a certain 
    size threshold. See, for example, section 182(b)(2). See 57 FR 13498, 
    13541 for discussion of EPA's historical definition of RACT.
        In developing its federal plan for the Phoenix area, EPA applied 
    this criterion by defining a reasonably available measure, in part, as 
    one that applies to a source that significantly contributes to PM-10 
    exceedances. See 63 FR 15920, 15927. In discussing the de minimis 
    criterion in its proposed rulemaking, EPA noted that the regulatory 
    scheme for particulate matter in subpart 4 of the CAA establishes two 
    graduated levels of controls, RACM and BACM, depending on the severity 
    of the area's air quality. See CAA section 189(a) and (b). These 
    statutory requirements, applicable to moderate and serious PM-10 areas, 
    respectively, clearly contemplate that sources that contribute to a 
    lesser degree to the particulate matter problem need not, in the first 
    instance, bear the burden of emission reductions. Thus, in determining 
    the initial level of control, EPA believes that it is appropriate to 
    focus on the reasonable and practicable measures for reducing PM-10 
    emissions from those sources identified through air quality modeling as 
    contributing to a greater degree, i.e., significantly, to PM-10 
    exceedances in the Phoenix area.
        Alternatively, even absent EPA's discretionary authority to develop 
    reasonable interpretations in the face of statutory silence, as stated 
    in the General Preamble, the inherent authority of administrative 
    agencies to exempt de minimis situations from a statutory requirement 
    has been upheld in contexts where an agency is invoking a de minimis 
    exemption as ``a tool to be used in implementing the legislative design 
    when ``the burdens of regulation yield a gain of trivial or no value.'' 
    Alabama Power Co. v. Costle, 636 F.2d 323, 360-61 (D.C. Cir. 1979). See 
    57 FR 13498, 13540. As noted in EPA's response to the comment below, 
    the provision of RACM for the source categories for which measures were 
    rejected because of de minimis emissions would have little impact on 
    the nonattainment problem in the Phoenix area.
        Because the Act can reasonably be interpreted to allow the use of a 
    de minimis criterion for judging whether a measure is RACM, EPA does 
    not believe that its interpretation that de minimis source categories 
    need only be controlled to the level necessary to produce RFP and 
    timely attainment results in reading the RACM requirement out of the 
    Act as to such sources.
        Comment: ACLPI further claims that EPA's de minimis exemption is 
    contrary to the Act's emphasis on timely attainment and protection of 
    health, and that control of a source category contributing de minimis 
    amounts could make the difference between attainment and nonattainment. 
    Therefore, ACLPI asserts that it is irrational for EPA to assert that 
    such source categories are invariably de minimis.
        Response: For PM-10, EPA has not determined that a given source's 
    or source category's emissions impact is invariably de minimis for 
    determining RACM. What constitutes a de minimis source category is 
    dependent upon specific facts of the nonattainment problem under 
    consideration. In particular, it depends upon whether requiring the 
    application of RACM for such sources or source categories would 
    contribute significantly to the Act's purpose of achieving attainment 
    of the NAAQS as expeditiously as practicable.
        For the Phoenix PM-10 nonattainment problem, the subject of this 
    FIP, controls on the source categories that EPA found to be de minimis 
    would not make the difference between attainment and nonattainment. 
    Five Phoenix area monitoring sites with expected PM-10 exceedances were 
    evaluated to determine which source categories were de minimis for the 
    purpose of the RACM demonstration in this FIP: four sites for the 24-
    hour standard and one site for the annual standard. In order to be 
    considered a de minimis source category in the FIP's RACM analysis, a 
    source category had to be de minimis at all five monitoring
    
    [[Page 41331]]
    
    sites and de minimis for both the 24-hour and annual standards. As 
    illustrated in Table 1, three of the five evaluated monitoring sites 
    did not have de minimis sources identified as contributing anything to 
    the exceedance. At the two remaining sites--Greenwood and Salt River--
    de minimis source categories contribute substantially less than 10 
    percent to the exceedance and in neither case would complete 
    elimination of these sources result in attainment at the 
    site.9 Hence in Phoenix, the use of a de minimis source 
    category criterion to judge the reasonableness of controls has not 
    excused controls on sources that would make the difference between 
    attainment and nonattainment.
    ---------------------------------------------------------------------------
    
        \9\ EPA has already approved the attainment demonstration for 
    the Salt River monitor. See 62 FR 41856, 41862 (August 4, 1997). 
    This attainment demonstration showed that controls on the de minimis 
    source categories would not result in more expeditious attainment.
    
       Table 1.--Contribution of De Minimis Sources to Exceedances in the   
                            Phoenix Metropolitan Area                       
    ------------------------------------------------------------------------
                                                                       De   
                                                        De Minimis   Minimis
                                                          sources    sources
                                                          without    without
                          Monitor                         RACM as    RACM as
                                                        percent of   percent
                                                        exceedance  of PM-10
                                                                    standard
    ------------------------------------------------------------------------
    24-Hour Exceedances:                                                    
      West Chandler...................................        0          0  
      Gilbert.........................................        0          0  
      Maryvale........................................        0          0  
      Salt River......................................        3.9        4.3
    Annual Exceedances:                                                     
      Greenwood.......................................        4.7        5.6
    ------------------------------------------------------------------------
    
        Comment: ACLPI claims that EPA's choice of 5 g/m\3\ and 1 
    g/m\3\ as the significance thresholds for contributors to 24-
    hour and annual PM-10 levels respectively has no rational basis 
    whatsoever and that the fact that EPA uses these thresholds in the new 
    source review programs does not make them logical choices as thresholds 
    for an entirely different purpose.
        Response: As stated in the proposal, EPA is relying on the new 
    source review permitting program's significance thresholds ``as a 
    surrogate for determining which source categories require application 
    of RACM'', and ``not for determining which source categories need 
    controls for attainment.'' 63 FR 15920, 15927. The new source review 
    program and nonattainment planning provisions are both elements in the 
    CAA's title I provisions to attain and maintain the health-based air 
    quality standards. The new source review program's significance levels 
    are used to judge when a source will have a significant impact on a PM-
    10 nonattainment area. See 40 CFR 51.165(b). For the purposes of this 
    FIP only, EPA used the 5 g/m\3\ and 1 g/m\3\ 
    significance thresholds for essentially the same purpose: to judge 
    whether a source or source category has a significant impact on the 
    Phoenix PM-10 nonattainment area.
        A significance threshold should be set at a level that segregates 
    the insignificant source categories from the ones that contribute most 
    to a nonattainment problem. As noted above in Table 1, in Phoenix, de 
    minimis sources, i.e., those that contribute less than 5 g/
    m\3\ to the 24-hour standard exceedances and 1 g/m\3\ to the 
    annual standard exceedances, account in total for less than 10 percent 
    of the impact at any monitor that exceeds either PM-10 standard. Thus, 
    because the selected thresholds result in the imposition of controls on 
    the sources that have a greater emissions impact on the air quality 
    problem, their application, in EPA's view, is most likely to result in 
    substantial air quality improvements.
        There were 12 source categories that fell beneath these surrogate 
    significance thresholds and which EPA determined, therefore, were de 
    minimis in the proposed FIP's RACM analysis: industrial yards, surface 
    mining, other industrial activities, gasoline-powered engines, on-road 
    motor vehicles, diesel-powered on-road motor vehicles, residential wood 
    combustion, other fuel combustion (e.g., residential space and water 
    heaters and commercial boilers), open burning and other area sources, 
    charbroiling, locomotives, airport ground support equipment, and major 
    point sources. Measures for residential wood combustion, open burning, 
    and major point sources categories were excluded from the RACM analysis 
    because RACM had already been approved for them. The list of potential 
    RACM did not include measures for the other fuel combustion sources or 
    the charbroiling categories, nor were any measures for these categories 
    suggested in the public comments received on the FIP. See Table 1 in 
    the proposed rulemaking, 63 FR 15920, 14929. The industrial yards, 
    surface mining, and other industrial activities source categories were 
    found to have an impact only at the Salt River monitor, a monitor for 
    which EPA has already approved an attainment demonstration that showed 
    controls on these sources would not result in more expeditious 
    attainment. See 62 FR 41856, 41862.
        Tailpipe emissions from gasoline-powered engines which account for 
    only 0.3 g/m \3\ impact on the annual standard exceedance at 
    the Greenwood monitor are already subject to stringent controls 
    including the emission standards under the Federal Motor Vehicle 
    Control Program, Arizona's premier I/M program, and the State's Clean 
    Burning Gasoline program. Diesel powered on-road vehicles including 
    trucks are also subject to national diesel fuels standards and tailpipe 
    emission standards. See 40 CFR 80.29 (diesel fuel standards) and 40 CFR 
    part 86, subpart H and 62 FR 54694 (October 21, 1997) (diesel tailpipe 
    standards).
        Finally, it is important to review how the significance thresholds 
    actually affected the outcome of the RACM analysis. EPA used the de 
    minimis criterion as a justification for excluding measures for 
    tailpipe emissions from on-road motor vehicles, locomotives, airplanes, 
    airport ground equipment, off-road motorcycles, and heavy-duty 
    construction equipment. See Table 3 in the proposed rulemaking, 63 FR 
    15920, 14933. The two latter categories are very small contributors to 
    the overall non-road engine source category. In total, these categories 
    contributed 1.4 g/m \3\ to the annual standard exceedance at 
    the Greenwood monitor and nothing to the 24-hour exceedances.
        Comment: The Arizona Department of Environmental Quality (ADEQ) 
    comments that the determination of significant and de minimis sources 
    for the annual PM-10 standard which was based upon preliminary modeling 
    results using Urban Airshed Modeling (UAM) should be re-evaluated 
    because the emissions inventory and dispersion modeling have not been 
    reconciled against receptor modeling, as recommended under EPA's 
    guidance for PM-10 plans (PM-10 SIP Development Guideline, EPA-450/2-
    86-001, June 1986). ADEQ suggests that this should concern EPA because 
    the inventory source apportionment differs greatly from receptor 
    modeling source apportionment from the 1989-90 Phoenix PM-10 Study 
    (Desert Research Institute, 1991). ADEQ states that, while these data 
    are not relatively recent, large changes in the character of ambient 
    particulate pollution since the time that study was conducted would not 
    be expected and these data have been corroborated by more recent 
    chemical analysis of particulate monitor filters from monitors in the 
    urbanized portion of the Phoenix metropolitan area. ADEQ notes that the 
    emission inventory is dominated by sources of geologic PM, even for the 
    fine (PM-2.5 and smaller) particulate. ADEQ states that it rarely
    
    [[Page 41332]]
    
    finds more than 10 percent geologic materials in the measured fine PM 
    fraction, whereas the emissions inventory estimates that over 70 
    percent of the fine PM is geologic. Based on the filter data, ADEQ 
    concludes that the role of combustion sources relative to geologic 
    sources is underestimated in the inventory, stating that carbon 
    particles, both primary and secondary, rival geologic material in terms 
    of PM-10 mass, but are minor in the PM-10 inventory that EPA is using.
        Response: EPA agrees that, ideally, dispersion and receptor 
    modeling should be reconciled, using accepted protocols, such as the 
    one in Protocol for Reconciling Difference Among Receptor and 
    Dispersion Models (EPA-450/4-87-008). However, the concentrations to be 
    reconciled should be matched in terms of sampling period; i.e., 1989/90 
    data should not be used to reconcile modeling for 1995. Moreover, 
    modeling of recent high PM-10 days would not necessarily be expected to 
    match those observed in the Desert Research field study. During that 
    field study, daily concentrations averaged 4 to 97 g/m \3\, 
    depending on the monitoring site, with no 24-hour NAAQS exceedances 
    observed. Although the data from this field study were all that were 
    available for the State's initial moderate area plan and were 
    acceptable on that basis, it is not reasonable to require analysis of 
    recent, exceedance days to match the earlier work. Unfortunately, no 
    later receptor modeling was available for the FIP for reconciliation. 
    See also the response to ACLPI's comment regarding the differences 
    between the 1989 and 1995 emission inventory in section IV.D.2. below.
    
    B. FIP Measures
    
    1. Commitment for Agricultural Sector
        In its April 1, 1998 proposed rulemaking, EPA proposed an 
    enforceable commitment to adopt and implement RACM as required by CAA 
    section 189(a)(1)(C) for the agricultural sector in the Phoenix 
    nonattainment area. Specifically, the proposed commitment contained 
    enforceable milestones for EPA's proposal (by September 1999), final 
    adoption (by April 2000), and implementation (by June 2000) of RACM for 
    agricultural fields and aprons. In the proposal, EPA explained its 
    intention to use a stakeholder approach for the development of best 
    management practices (BMPs) to meet the CAA's RACM requirement and 
    provide PM-10 emission reductions from agricultural sources in the 
    Phoenix area.
        EPA is today taking final action to promulgate an enforceable 
    commitment in 40 CFR 52.127 to adopt and implement RACM as required by 
    CAA section 189(a)(1)(C) for the agricultural sector. While EPA 
    received a number of comments on its proposed commitment, to which it 
    responds below and in the TSD, the Agency is, in this final rule, 
    retaining the text of the commitment as proposed.
        Comment: ACLPI and the American Lung Association of Arizona (ALAA) 
    claim that a mere commitment to develop unspecified controls for 
    agricultural fields and aprons is inadequate and does not meet the CAA 
    requirements or EPA guidance for enforceable measures as expeditiously 
    as practicable. The commenters contend that such a commitment offers no 
    assurance that adequate controls will ever be adopted.
        Response: Because the commenters provide no citations or analysis, 
    in favor of a broad claim of inadequacy, EPA is left to divine the 
    precise nature of their legal challenge to the provisions for 
    agriculture in the proposed FIP. To the extent that the commenters are 
    suggesting that ``a mere commitment'' is not cognizable under the CAA, 
    EPA notes that the Agency has a long history of approving enforceable 
    commitments in SIPs under the statute. Moreover, the milestones in such 
    commitments have routinely been deemed to be enforceable in CAA section 
    304 citizen suits. For an extensive discussion of the legal basis for 
    such approvals under the CAA as amended in 1990, see 62 FR 1150, 1155-
    1157 (January 8, 1997).
        In its April 1, 1998 Federal Register notice, EPA proposed a 
    commitment to adopt and implement RACM for agricultural fields and 
    aprons by specified dates that, as finalized today, will be enforceable 
    in a citizen suit. In that proposal, EPA explained its rationale for 
    addressing agricultural sources of PM-10 emissions. In short, the 
    Agency believes that, given the current state of its knowledge of the 
    local agricultural community and conditions, the BMP process the Agency 
    intends to pursue is the approach most likely to lead to effective 
    controls on these sources in the shortest possible time frame. See 63 
    FR 15920, 15935-15936.
        EPA has issued detailed preliminary guidance on the appropriate 
    methodology for determining RACM under CAA sections 172(c)(1) and 
    189(a)(1)(C), as well as a list of available fugitive dust control 
    measures. See 57 FR 13540-13541; 13560-13561 and 57 FR 18071, 18072. 
    EPA followed this guidance in determining federal RACM in the proposed 
    FIP. In carrying out its FIP commitment to propose RACM for 
    agricultural fields and aprons by no later than September 1999, EPA 
    will adhere to the RACM guidance in effect for these sources at that 
    time. As with all proposed EPA rulemakings, the public will have the 
    opportunity to state its views on the legal adequacy of the proposed 
    controls. Should EPA fail to propose RACM for these sources by 
    September 1999, ACLPI and ALAA may pursue their remedies under CAA 
    section 304. Once EPA takes final adoption action, they can of course 
    petition for review of that action under CAA section 307.
        Comment: ACLPI argues that since agricultural control measures have 
    been adopted in other states, e.g., in California's Coachella Valley, 
    or identified by the Governor's 1996 Task Force, there is no excuse for 
    delay. ACLPI also comments that even if further delay in development of 
    agricultural controls were warranted, EPA cannot justify taking more 
    than a year to develop proposed rules and that there is no reason the 
    Agency cannot adopt enforceable rules within 6 months. ACLPI asserts 
    that 6 months would allow time for obtaining stakeholder input without 
    turning rule development into a protracted exercise.
        Response: Prior to the FIP proposal, EPA evaluated available 
    measures for agriculture adopted by the South Coast Air Quality 
    Management District (SCAQMD): 403--Fugitive Dust; 403.1--Wind 
    Entrainment of Fugitive Dust; and 1186--PM-10 Emissions from Paved and 
    Unpaved Roads, and Livestock Operations. As discussed in the FIP 
    proposal, EPA determined that there was insufficient information 
    available to conclude that implementing the controls in these rules in 
    Maricopa County would, taking all relevant factors into account, be 
    appropriate, i.e., reasonable, and thus constitute RACM for this area. 
    See 63 FR 15920, 15935. EPA intends to consider whether these or other 
    measures would be appropriate for the Phoenix area during the BMP 
    development process.
        ACLPI dismisses EPA's statements regarding the Agency's inability 
    to ascertain the suitability of the SCAQMD measures for the Phoenix 
    area by asserting that the ``techniques for controlling agricultural 
    emissions are well known.'' This assertion ignores the fact, noted by 
    EPA in its proposed rulemaking, that PM-10 strategies in an 
    agricultural context are uniquely based on local circumstances, and 
    could vary greatly due to factors such as regional climate, soil type, 
    growing season, crop types, water availability, and relation to
    
    [[Page 41333]]
    
    urban centers. 62 FR 15920, 15935. A resolution of these uncertainties, 
    in the context of an assessment of the potential mix of control 
    measures, is critical to a determination of whether controls such as 
    those contained in the SCAQMD rules are reasonably available for the 
    Maricopa County nonattainment area and will contribute to attaining the 
    PM-10 standards in the area. Such an assessment is fully consistent 
    with EPA's guidance regarding the process for determining RACM.
        As a result, EPA determined that the goal of attaining the PM-10 
    standards in Maricopa County with respect to agricultural sources would 
    be best served by engaging all interested stakeholders in a joint 
    comprehensive process on the appropriate mix of agricultural controls 
    to implement in Maricopa County. EPA believes that this process, 
    despite the additional time needed to work through it, will ultimately 
    result in a best and most cost-effective controls on agricultural 
    sources in the County. EPA has thus committed in the final FIP to 
    propose RACM for the agricultural sector by September 1999, with final 
    adoption in April 2000. Given the number of potential BMPs, the variety 
    of crops types, the need for stakeholder input, and the time necessary 
    to develop the BMPs into effective control measures, EPA believes that 
    the adoption schedule is expeditious.10
    ---------------------------------------------------------------------------
    
        \10\ It is important to note that the measures identified by the 
    Governor's 1996 Task Force were initially intended to be voluntary 
    and would require a process virtually identical to that envisioned 
    by EPA in its FIP in order to be developed into effective controls. 
    The Task Force measures, along with any other measures potentially 
    available for Maricopa County, will be evaluated as part of the BMP 
    development process.
    ---------------------------------------------------------------------------
    
        Comment: The American Farm Bureau Federation (AFBF) contends that 
    because little data exist for agriculture's contribution to PM-10, 
    there is a need for sound science before regulation and the California 
    Regional Particulate Matter Air Quality Study (CRPMAQS) will provide 
    additional data. AFBF claims that any agricultural emission controls 
    are premature and should be postponed until the CRPMAQS data is 
    available. The Maricopa County Farm Bureau (MCFB) also comments that 
    agricultural controls are premature, citing University of California 
    and University of Arizona research suggesting current PM-10 emission 
    estimates from agricultural sources are overstated.
        Response: On August 4, 1997, EPA disapproved portions of the 
    State's microscale plan, in part because it demonstrated, through a 
    scientific study, that agricultural sources contribute significantly to 
    exceedances of the PM-10 air quality standards in Maricopa County, but 
    did not provide for the implementation of RACM for agricultural fields 
    and aprons. 62 FR 41856, 41862. As a result, EPA is providing for RACM 
    implementation for these sources.
        Moreover, other than vague statements about lack of data and sound 
    science, AFBF failed to describe any specific deficiencies in the 
    scientific study that resulted in the conclusions in the microscale 
    plan. Likewise, MCFB failed to cite any specific research data that 
    would refute those conclusions. EPA believes that the microscale plan's 
    conclusions were based on sound science, as demonstrated by an 
    intensive study throughout 1995 which included field surveys, aerial 
    photography, examination of activity logs, and interviews with source 
    operators. See Microscale plan, Appendix A, Chapter 4. The study 
    resulted in substantially better emissions inventory data than were 
    usually available. The study included extensive monitoring and a 
    thorough analysis of the area's PM-10 problem. The State used locally-
    developed emission factors in its modeling. Overall, the episodes 
    modeled in the microscale plan are representative of the conditions 
    under which the exceedances of the 24-hour PM-10 NAAQS occur. Model 
    performance was generally good and well within what can be expected 
    from the type of model used. See 62 FR 31025, 31031.
        EPA will use the CRPMAQS and any other information appropriate for 
    the Maricopa area as the data become available. However, it is 
    important to note that the PM-10 exceedances in Maricopa County are 
    typically caused by wind-blown, primary particulates (i.e., geologic 
    sources). The PM-10 exceedances in the San Joaquin Valley (where the 
    CRPMAQS is underway) are caused by primary and secondary particulates 
    and typically are not associated with high wind events. While the 
    CRPMAQS will yield a tremendous amount of new information, much of the 
    information may not be applicable to Maricopa. For the foregoing 
    reasons, EPA does not believe that postponing development of the BMPs 
    pending the completion of the CRPMAQS would be appropriate.
        Comment: AFBF comments that this past March, the U.S. Department of 
    Agriculture-Natural Resources Conservation Service (USDA-NRCS) 
    Agricultural Air Quality Task Force agreed to develop a PM-10 
    implementation policy that will help guide states and EPA when dealing 
    with agriculture and PM-10. Thus, AFBF believes that any agricultural 
    emission controls are premature and should be postponed until a USDA 
    Task Force policy is available. MCFB and AFBF believe that if USDA 
    develops a national policy which outlines voluntary controls for 
    agricultural PM-10, enforceable provisions should be removed from the 
    FIP and SIP. They state that the final FIP should include language that 
    will allow for the FIP to be revised as data and policy become 
    available.
        Response: Regarding the issue of whether the FIP agricultural 
    provisions are premature, see EPA's response to AFBF's previous 
    comment. In addition, EPA does not believe that postponing development 
    of the BMPs pending the development of a USDA Task Force policy would 
    be appropriate. EPA has worked extensively with MCFB, the Arizona Farm 
    Bureau Federation and other stakeholders to craft a workable strategy 
    for Maricopa County. The Arizona Federation supported legislation 
    recently signed by Arizona Governor Hull for a State-led process for 
    developing BMPs.11 EPA supports the position of the farming 
    interests in Maricopa County to implement the recently adopted 
    legislation and thereby maintain local control over the solution.
    ---------------------------------------------------------------------------
    
        \11\ Governor Hull recently signed SB 1427 ``Air Quality 
    Measures'' which authorizes a state-led BMP process. Section 16. 
    Title 49, chapter 3, article 2, of the Arizona Revised Statutes was 
    amended by adding section 49-457, Agricultural best management 
    practices committee; members; powers; permits; definitions. The 
    State has indicated to EPA that section 49-457 will be submitted to 
    EPA in the coming months as a replacement for the portion of the FIP 
    which addresses agricultural sources.
    ---------------------------------------------------------------------------
    
        If EPA adopts a national policy for PM-10 emissions from 
    agricultural sources that the State and the Maricopa County farming 
    community would like to use, EPA will assess its implications for the 
    area and work with the agricultural leaders and the local air agencies 
    on any appropriate changes to the current strategy.
        Comment: MCFB comments that the 24-hour exceedances attributed to 
    agricultural sources occurred during a dust storm and unless BACM are 
    in place, EPA will not consider natural occurrences, such as a dust 
    storm, as a source of PM-10. Because dust storms will happen whether or 
    not BACM are in place, MCFB would like this policy to be changed before 
    any industry is burdened with control measures.
        Response: Contrary to MCFB's contention, the exceedances which 
    implicate agricultural sources did not occur during dust storms. Rather 
    they
    
    [[Page 41334]]
    
    resulted from normal wind conditions which routinely occur. A review of 
    the exceedances and monitoring data used in support of the State's 
    microscale plan indicates that the exceedances were localized and did 
    not occur at many of the monitoring sites. If the exceedances had been 
    caused by a dust storm, exceedances would be expected throughout the 
    County.
        EPA does have a policy 12 that permits dust raised by 
    high winds from anthropogenic sources controlled with BACM to be 
    treated as due to a natural event. Key aspects of the policy include 
    that EPA will not designate an area as nonattainment when NAAQS 
    violations are caused by natural events and EPA would consider 
    redesignating an area to attainment if it had BACM in place and the 
    only violations were due to high wind events. However, and more 
    importantly, the policy is explicit that all exceedances, no matter 
    what the cause, are of concern to public health and steps need to be 
    taken to reduce public exposure to unhealthful particulate levels. 
    Therefore, there is a need to reduce the level of exceedances during 
    natural events even if the exceedances cannot be eliminated; hence, the 
    requirement for BACM.
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        \12\ Memorandum from Mary D. Nichols, EPA, to EPA Regional 
    Offices, entitled ``Areas Affected by PM-10 Natural Events,'' dated 
    May 30, 1996.
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        Comment: MCFB states that Maricopa County is the fastest growing 
    county in the nation and that rapid growth is forcing land out of 
    agriculture at a rate of 6,000 acres per year. MCFB urges that because 
    the growth is pushing agriculture out of business, agriculture should 
    be released from further controls or it will only speed the 
    disappearance of agriculture from the Phoenix area. MCFB believes that 
    the only way to eliminate PM-10 is to regulate farmers out of existence 
    in Maricopa County.
        Response: In the FIP proposal, EPA acknowledged that agricultural 
    land is being converted into other uses. However, even with rapid 
    conversion, agricultural lands will remain a significant source of PM-
    10 for the foreseeable future. EPA's purpose here is to effectively 
    control PM-10, not to put farmers out of business. Through the 
    stakeholder process, EPA will work with the farming community to meet 
    that goal while ensuring that the BMPs developed to meet the CAA's RACM 
    requirement are economically feasible. In addition, some cities in 
    Maricopa County have begun to express interest in preserving 
    agricultural lands for open space. This interest may reduce the amount 
    of land being converted from agricultural use.
    2. Rule for Unpaved Parking Lots, Unpaved Roads and Vacant Lots
        a. Background. In its April 1, 1998 notice, EPA proposed a FIP rule 
    for Phoenix that required RACM for unpaved parking lots, unpaved roads 
    and vacant lots. The reader should consult that notice for a detailed 
    discussion of the requirements EPA proposed for these sources. See 63 
    FR 15920, 15937.
        In the FIP proposal, EPA explained that MCESD has adopted, and EPA 
    has approved, MCESD Rule 310 that requires RACM for fugitive dust 
    sources, including those regulated in the FIP. However, because EPA had 
    previously determined that the County was not enforcing the rule for 
    these three PM-10 sources, the Agency disapproved the State's RACM 
    demonstration for them. 62 FR 41856, 41862.13 As a result, 
    EPA is promulgating a federal RACM rule covering these sources. Because 
    the deficiency in the State's RACM demonstration did not relate to the 
    substance of MCESD's fugitive dust rule, EPA modeled its proposed rule 
    on Rule 310.
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        \13\ Section 221 of Rule 310 is entitled ``Reasonable Available 
    Control Measure (RACM)'' and the term ``RACM'' is used throughout 
    the rule. EPA has approved Rule 310 into the SIP as meeting the 
    enforceability requirements of CAA sections 110(a)(2)(A) and 
    172(c)(6). See 62 FR 31025, 31032 (June 6, 1997) and 62 FR 41856, 
    41864. Regardless of the terminology in Rule 310, as just noted, EPA 
    has determined that the County's implementation of the rule does not 
    meet the RACM implementation requirement of CAA section 189(a)(1)(B) 
    for unpaved roads, unpaved parking lots and vacant lots.
    ---------------------------------------------------------------------------
    
        The primary difference between the County rule and EPA's proposed 
    rule was that, because EPA's San Francisco office would be responsible 
    for its enforcement, the FIP rule provided greater specificity and 
    detail regarding which control measures are appropriate for which 
    sources. See 63 FR 15920, 15937; 15942-115943. Since, by its terms, the 
    requirements of Rule 310 are so broad, the general effect of this 
    greater specificity and detail was that EPA's proposed FIP rule, in its 
    entirety, while achieving what the Agency believed to be a RACM level 
    of control, was somewhat narrower in scope than the County's rule as it 
    relates to unpaved roads, unpaved parking lots and vacant 
    lots.14
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        \14\ For example, section 312 of Rule 310 regulates users of 
    unpaved roads, while EPA's rule proposed regulation of only owners 
    and operators; and Rule 310 does not exempt any unpaved roads, while 
    EPA's rule included a low ADT exemption.
    ---------------------------------------------------------------------------
    
        EPA is today promulgating a final FIP fugitive dust rule at 40 CFR 
    52.128 that incorporates a number of changes in response to public 
    comments. Those changes, summarized and discussed below and in the TSD, 
    reflect the same fundamental philosophy described above. The net result 
    of the substantive changes is to provide sources with greater 
    flexibility than provided in the FIP proposal.15 For 
    example, the final FIP rule includes an increase from 0.10 acre to 0.50 
    acre in the de minimis disturbed surface area level for vacant lots; an 
    increase from 150 average daily trips (ADT) to 250 ADT in the ADT 
    exemption level for unpaved roads; a new de minimis use level for 
    unpaved parking lots; and the elimination of the dust control plan 
    (DCP) requirement for weed abatement.
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        \15\ For the reasons discussed in this section, EPA believes 
    that the final FIP rule, with the modifications made in response to 
    comments, meets the RACM requirements of the CAA.
    ---------------------------------------------------------------------------
    
        In a separate rulemaking, EPA plans to propose and take comment on 
    amendments to some of the alternative control measure (ACM) and test 
    method provisions of today's final rule. While EPA believes that these 
    changes are warranted,16 EPA cannot include them in today's 
    final action because they are beyond the scope of the proposed FIP 
    rule. Because EPA has a court-ordered deadline of July 18, 1998 to 
    promulgate the FIP rule, the Agency is taking final action on its rule 
    without the ACM and test method changes, but will publish the proposed 
    amendments shortly.
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        \16\ EPA intends to propose new test methods to replace the 
    opacity (and corresponding opacity standard) and the visible crust 
    method as proposed in the FIP and include an additional test method 
    for standing vegetation. In response to public comments, EPA 
    conducted technical field work in Phoenix on the proposed test 
    methods. While they were the best available methods known to EPA at 
    the time of proposal, additional analysis has indicated that other 
    test methods may be more accurate and comprehensive. EPA also 
    intends to propose the elimination of the requirement to submit ACMs 
    to EPA for approval unless the ACM's effectiveness cannot be 
    measured by the test methods or specific language included in the 
    rule. EPA is also considering whether to propose an amendment to the 
    FIP rule that would require RACM for unpaved roads that are neither 
    owned nor maintained by a public entity.
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        b. Summary of Changes to the Proposed FIP Rule. In addition to the 
    substantive changes to the proposed FIP rule referenced above that 
    provide additional flexibility, the final FIP rule also includes 
    changes that clarify or revise the RACM implementation schedules. Other 
    final FIP rule changes provide minor clarifications of the FIP rule 
    provisions such as adding language to clarify test methods, exemptions 
    and definitions. The substantive changes to the final FIP rule are 
    summarized below by source category.
        Unpaved Parking Lots and Unpaved Roads. The final rule:
    
    [[Page 41335]]
    
         Increases the ADT exemption level for unpaved roads from 
    150 ADT to 250 ADT.
         Includes a de minimis use exemption for unpaved parking 
    lots and requires RACM only on surfaces where vehicles park.
         Eliminates the 2-inch requirement for gravel and relies on 
    the applicable test methods for compliance.
         Includes organic stabilizers in addition to chemical 
    stabilizers.
         Eliminates the provision requiring RACM only where 70 
    percent of the unpaved road is located within the Phoenix nonattainment 
    area and focuses on the unpaved roads or portion of an unpaved road 
    located within the nonattainment area.
         Clarifies that operators of privately-owned public access 
    unpaved roads are the parties responsible for compliance with the RACM 
    requirements.
        Vacant Lots. The final rule:
         Eliminates the requirement for dust control plans in favor 
    of a provision requiring compliance with three RACM options.
         Increases the de minimis disturbed area level from 0.10 
    acre (proposed rule) to 0.50 acre.
         Includes a de minimis exemption (5,000 square feet) for 
    lots disturbed by motor vehicle trespassing.
         Modifies the time frame for RACM to be implemented on 
    disturbed surfaces from eight months to 60 days, except for the initial 
    eight months following the effective date of the rule.
         Expands RACM for motor vehicle disturbances on vacant 
    lots.
         Eliminates the 2-inch requirement for gravel and relies on 
    the applicable test methods for compliance.
         Includes an initial eight-month time frame following the 
    final rule's effective date for implementation of RACM for motor 
    vehicle disturbances and weed abatement.
         Clarifies the rule's test methods and contains language 
    for some test methods that were previously only referenced in the 
    proposed rule.
        General Changes. The final rule:
         Clarifies the requirements to which exemptions apply.
         Clarifies that the tribal lands within the Phoenix PM-10 
    nonattainment area are not covered by the provisions of the FIP rule.
         Clarifies that Apache Junction is not covered by the 
    provisions of the FIP rule.17
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        \17\ The Maricopa PM-10 nonattainment area is comprised of the 
    greater Phoenix metropolitan area in Maricopa County and the Apache 
    Junction area in Pinal County. The State submitted separate moderate 
    area PM-10 plans for the Maricopa County portion and the Pinal 
    County portion of the nonattainment area. The incompleteness finding 
    that triggered EPA's obligation to promulgate this FIP was made only 
    on the submitted plan for Maricopa County and thus EPA's FIP 
    authority only extends to this part of the nonattainment area. The 
    Pinal County plan became complete by operation of law on May 14, 
    1992. As a result, EPA is clarifying that this FIP does not cover 
    the Apache Junction area.
    ---------------------------------------------------------------------------
    
        c. Public Comments and EPA Responses. Implementation Costs.
        Comment: The Maricopa Department of Transportation (MCDOT) and the 
    Arizona Chamber of Commerce (ACOC) assert that EPA's interpretation of 
    Maricopa County Rule 310 as currently requiring suppression of dust on 
    all unpaved public access roads is incorrect. MCDOT claims that in the 
    development of the rule, MCDOT, MCESD and other stakeholders agreed to 
    commit to a dust reduction program. MCDOT states that the rule called 
    for use of RACM on unpaved roads in Section 312 with reference to the 
    list of measures in Section 221. MCDOT further states that, while not 
    explicitly stated in the rule, EPA and MCESD have always interpreted 
    RACM to include a financial and cost effectiveness test and that MCESD 
    has in practice accepted the SIP commitments for dust suppression and 
    the five-year work plan for capital projects as what was reasonably 
    available. MCDOT says that its commitment was to stabilize 25 miles of 
    roadway per year. MCESD also makes similar comments regarding its 
    acceptance of the five-year work plans for capital projects as 
    satisfying the RACM requirement.
        Response: EPA notes that MCDOT concedes, by its references to 
    sections 312 and 221 of Rule 310, that the regulatory scope of these 
    sections of Rule 310 encompasses the same universe of sources and 
    measures as the proposed FIP rule. Thus, the issue is whether any 
    acceptance by MCESD of MCDOT's SIP commitment to stabilize 25 miles of 
    roadway per year constitutes compliance with the rule. In EPA's final 
    action on the State's microscale plan, EPA determined that the MCESD's 
    implementation of Rule 310 (i.e., enforcement on a complaint basis for 
    vacant lots, unpaved parking lots and unpaved roads 18) is 
    inadequate and consequently disapproved the RACM demonstration in that 
    plan for these sources. 62 FR 41856, 41865. EPA received no public 
    comments which disagreed with this finding. Moreover, MCESD has never 
    incorporated a 25 mile stabilization limit into Rule 310. Nor has EPA 
    made a determination or approved into the Phoenix PM-10 SIP MCDOT's 25 
    mile stabilization commitment as representing a RACM level of control. 
    Therefore, as a legal matter, such an understanding between MCESD and 
    MCDOT does not establish MCDOT's commitment as meeting the RACM 
    requirements of the CAA.19
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        \18\ The fact that MCESD enforces Rule 310 for these sources on 
    a complaint basis is clear evidence that they are included within 
    the regulatory scope of the rule.
        \19\ See footnote 13.
    ---------------------------------------------------------------------------
    
        As stated above, EPA modeled its FIP rule on Rule 310, but provided 
    greater detail and specificity which had the effect of narrowing the 
    scope of Rule 310. As explained in more detail below, EPA believes, 
    based on the information currently available to the Agency, that the 
    requirements of the final FIP rule meet the economic feasibility 
    criterion in the Agency's guidance and represent RACM for unpaved 
    roads.
        Comment: MCDOT and the City of Mesa claim that EPA did not provide 
    any analysis as to what methods or criteria were used to identify RACM 
    and that there is no cost-benefit analysis provided to demonstrate the 
    reasonable availability and effectiveness of the proposed measures. The 
    City of Mesa asserts that, as EPA stated in the proposed rulemaking, 
    any measures that are determined to be de minimis, technologically 
    infeasible or unreasonably costly should be removed from the list of 
    RACM. This commenter concludes that EPA did not conduct this analysis 
    as part of the proposed FIP.
        Response: In section IV.B. of its proposed rulemaking, EPA set 
    forth the criteria that the Agency must apply in determining what 
    measures constitute RACM. In general, EPA excludes measures it 
    determines to be unreasonably costly, technologically infeasible or 
    that apply to sources of PM-10 that are de minimis. 63 FR 15920, 15926. 
    In section V of the FIP proposal, EPA provided a detailed description 
    of its approach for determining which RACM to include in the proposed 
    FIP. 63 FR 15920, 15927-34. For the purposes of the RACM analysis, 
    public sector sources, like EPA, should evaluate the criterion relating 
    to the cost of control measure implementation by considering the 
    reasonableness of potential RACM based on the financial and resource 
    capabilities of the governmental entity responsible for implementing 
    such measures. The FIP RACM analysis involved a list of 99 potential 
    RACM which were evaluated against 2 sets of criteria: (1) to determine 
    if a measure was appropriate for federal implementation; and (2) to 
    determine if a measure was RACM. The latter set of criteria include 
    economic feasibility.
    
    [[Page 41336]]
    
        EPA did not provide a cost-benefit analysis for the proposed FIP 
    measures because, as discussed in the proposed FIP's Regulatory 
    Flexibility Analysis, all of the requirements of the FIP's fugitive 
    dust rule are already required under the County's Rule 310. See 63 FR 
    15920, 15942. In fact, EPA believes, as stated previously, that the 
    scope of the FIP rule as proposed (and as modified in this final 
    action) is narrower than that of Rule 310. Hence the costs of 
    compliance with the FIP rule should, to the extent that there is any 
    cost differential, be less than those for Rule 310.20 See 63 
    FR 15920, 15943-15944 and section VII.B.2. below for detailed 
    discussions of this issue.
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        \20\ For this reason, EPA disagrees with MCDOT's claim that 
    compliance with the FIP rule implicates the cost-benefit analysis 
    requirements of the Unfunded Mandates Reform Act. Nor does the FIP 
    rule constitute a major federal action under the National 
    Environmental Policy Act (NEPA) as the commenter suggests. EPA 
    actions under the CAA are expressly exempt from that statute. 15 
    U.S.C. Sec. 793(c)(1).
    ---------------------------------------------------------------------------
    
        Nevertheless, EPA did include estimates of control effectiveness 
    and unit costs in the TSD for the FIP rule.21 As discussed 
    in the TSD, the control effectiveness estimates were based on available 
    data, which was limited. Thus only relatively crude estimates were 
    developed for the emissions reductions associated with the FIP rule (or 
    implementation of Rule 310). The unit costs are based on information 
    found in documents prepared by or referenced by the Maricopa 
    Association of Governments. The costs associated with the FIP rule and 
    their relationship to the RACM determination are discussed further in 
    response to the following comment.
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        \21\ See sections 5.0, ``Emissions Reductions,'' and 6.0, ``Cost 
    Estimates'' of the TSD for the Phoenix FIP Rule for Unpaved Parking 
    Lots, Unpaved Roads and Vacant Lots.
    ---------------------------------------------------------------------------
    
        Comment: MCDOT comments that if Maricopa County were required to 
    pave all public access unpaved roads within its jurisdiction, as 
    described by the proposed rule, it would require an expenditure greater 
    than $100 million, to as much as $300 million, or approximately 5-10 
    years of the County's total capital improvements budget for 
    transportation projects. Furthermore, MCDOT asserts that additional 
    paving of parking lots and compliance by cities and towns within the 
    County could, in aggregate, be nearly one billion dollars. MCDOT also 
    claims that there is a substantial maintenance expense in the future 
    for all roads paved or stabilized, which will create an additional tax 
    burden.22
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        \22\ MCDOT elaborates on this point by claiming that long term 
    maintenance data indicate that by paving these roads, life cycle 
    maintenance costs will increase by a factor of five. MCDOT estimates 
    that chemical stabilization will triple the maintenance cost of 
    these roadways.
    ---------------------------------------------------------------------------
    
        Response: The final FIP rule does not require the County to pave 
    all of its unpaved roads. The FIP rule requires RACM for unpaved roads 
    with greater than 250 ADT (increased from 150 ADT in the proposed FIP 
    rule). Compliance options include methods of stabilization that are 
    less costly than paving.
        As discussed above and in the proposed FIP's Regulatory Flexibility 
    Analysis, the FIP rule does not impose any additional compliance burden 
    beyond that required by Rule 310. Thus, even without the FIP rule, EPA 
    believes that EPA, a citizen, the State and the County could enforce 
    under Rule 310 control measures that are more stringent than those 
    required under the FIP rule.
        Because EPA had to develop the FIP rule within the court-ordered 
    schedule, EPA was limited in the cost data available to the Agency for 
    the economic feasibility analysis prong of the RACM criteria. See EPA's 
    response to the previous comment. Unfortunately, while commenters on 
    the proposed FIP rule provided conclusions as to what they deemed to be 
    unreasonable compliance costs, they supplied no supporting data. 
    Therefore, EPA was unable to use this information to refine its 
    determination of the RACM level of control.
        Comment: The City of Mesa and MCDOT maintain that local governments 
    should have the autonomy to target unpaved roads that are determined 
    through local study and evaluation to significantly contribute to local 
    or regional PM-10 levels and develop schedules for paving or 
    stabilizing those roads with the greatest potential to decrease PM-10 
    emissions.
        Response: In meeting the RACM requirements of the CAA, states are 
    free to select the mechanisms they deem to be the most appropriate. 
    Such decisions routinely involve evaluations of the concerns of local 
    governments. While EPA has not approved Rule 310 as meeting the Act's 
    RACM requirements for the unpaved road, unpaved parking lot and vacant 
    lot source categories, clearly that rule was intended to provide a 
    County-wide RACM regulatory scheme. If MCESD and the State believe that 
    the rule can be modified to address the concerns raised by the City of 
    Mesa, Maricopa County or other local jurisdictions, it is free to do so 
    and EPA will determine whether the rule as modified represents RACM and 
    can replace the FIP rule. In making this determination, EPA would 
    evaluate information submitted by MCESD in the staff report 
    accompanying the rule justifying why the rule as modified represents 
    RACM.
        In developing the FIP rule, EPA was constrained by a number of 
    factors that necessitated a single approach to implementing RACM for 
    the entire Phoenix nonattainment area. For example, EPA's San Francisco 
    office must be able to enforce the rule throughout the nonattainment 
    area and inform regulated parties of the rule's requirements. Resources 
    for public outreach would be inadequate should EPA need to administer 
    RACM differently from one jurisdiction to another. Moreover, even if 
    EPA could administer a rule that specifies a different RACM level of 
    control for the numerous jurisdictions within the Phoenix nonattainment 
    area, EPA lacks the detailed information it would need to do so. 
    Furthermore, as noted above, such information has not been forthcoming 
    in responses to the FIP proposal.
        Comment: MCDOT, ADEQ and the Arizona Chamber of Commerce all 
    comment on the issue of legal responsibility for compliance with the 
    proposed FIP rule's requirements for unpaved roads. The Chamber claims 
    that the definition in Sec. 52.128(b)(17) of ``unpaved road'' as 
    ``those * * * owned by any federal, state, county, municipal or other 
    governmental or quasi-governmental agencies' will cause prohibitively 
    expensive disputes over ownership between private and public entities 
    and, due to its vagueness, could include more than 100,000 roads in the 
    County. The Chamber also comments that local governments do not have 
    the financial resources to decide ownership and to implement RACM. 
    MCDOT notes that there is no definition of ``ownership'' and that in 
    some contexts the proposed rule refers to ``owner/operator'' and in 
    others, strict legal ownership. In this connection, MCDOT states that 
    ninety percent of the unpaved, public access roads it maintains in the 
    nonattainment area are not in public ownership. ADEQ makes a similar 
    point and believes that the FIP's requirements should apply only to 
    publicly-owned roads.
        Response: EPA's intent in proposing the requirements for unpaved 
    roads was to ensure that responsible entities apply RACM to control 
    these fugitive dust sources. As stated in the proposed rulemaking, EPA 
    intended to accomplish this goal by making the requirements of the FIP 
    rule essentially mirror those of MCESD's Rule 310. Because Section 312 
    of Rule 310 is very broadly drafted, EPA attempted in its
    
    [[Page 41337]]
    
    proposal to narrow those responsible for compliance to owners or 
    operators of the pollution sources. In order to rectify the confusion 
    perceived by the commenters, EPA has amended the final rule to add the 
    word ``maintains'' in the definition of ``owner/operator'' in 
    Sec. 52.128(b)(10) and to add the words ``or operated'' in the 
    definition of ``unpaved road'' in Sec. 52.128(b)(17).
        EPA does not believe that the purpose of the FIP's unpaved road 
    requirements is served by limiting them to those sources that are 
    publicly owned, particularly in view of the statistics provided by 
    MCDOT and ADEQ. Therefore, EPA has also removed the word ``public'' 
    from the definition of ``unpaved road'' in Sec. 52.128(b)(17) and, 
    consequently, from the RACM requirements for unpaved roads in 
    Sec. 52.128(d)(2). Thus the final rule applies to unpaved roads that 
    are open to public access, but are privately or publicly owned. These 
    changes are intended to clarify that both owners, and operators, 
    including those who conduct roadway maintenance, are legally 
    responsible for complying with the RACM requirements of 
    Sec. 52.128(d)(2).23
    ---------------------------------------------------------------------------
    
        \23\ EPA routinely requires that those responsible for operation 
    and maintenance of a source comply with emission or performance 
    standards established under the CAA. See CAA section 302(k) and (l).
    ---------------------------------------------------------------------------
    
        In response to comments regarding the vast number of roads 
    implicated by the proposed RACM requirements, and the concomitant 
    compliance costs, EPA has changed the ADT threshold in 
    Sec. 52.128(d)(2) from 150 to 250 and limited the sources to which that 
    section's requirements apply to those portions of an unpaved road 
    located within the Phoenix PM-10 nonattainment area.
        Comment: MCESD comments that a 0.10 acre threshold is appropriate 
    at which to expect the application of controls. However, MCESD believes 
    that enforcement on vacant lots should be reactive (i.e. complaint 
    driven) for sites less than a threshold of 10 to 50 acres and proactive 
    on larger sites. However, weed abatement operations that are permitted 
    will be inspected under Rule 310. The inability to know when a vacant 
    lot has been disturbed significantly reduces the cost-effectiveness of 
    a proactive enforcement program for vacant lots. The amount of time 
    spent checking undisturbed vacant lots adds little value to efforts to 
    reduce particulate pollution. In addition, MCESD recommends that EPA 
    refine what level of enforcement and/or implementation represents RACM 
    and which represents BACM. MCESD cites as an example that their 
    contacts with Coachella Valley area cities referenced in EPA's proposal 
    and the TSD established that their vacant lot provisions are enforced 
    on a complaint-only basis.
        Response: In its proposed action on the microscale plan, EPA 
    proposed to find that the plan did not assure implementation of either 
    RACM or BACM as required by CAA sections 189(a)(1)(C) and 189(b)(1)(B) 
    and to disapprove the RACM/BACM demonstrations for the unpaved parking 
    lots, unpaved roads, and vacant land source categories. This proposed 
    disapproval was based on the County's enforcement of Rule 310 for these 
    source categories on a complaint-basis only. See 62 FR 31025, 31034-
    31035. MCESD did not make the comments it now advances in connection 
    with EPA's proposed action on the microscale plan. On August 4, 1997, 
    EPA took final action to disapprove the microscale plan provisions for 
    implementing RACM and BACM for these sources. 62 FR 41856, 41862.
        While EPA considered dust control rules for other areas, RACM and 
    BACM determinations are made on a case by case basis. See e.g., 57 FR 
    13498, 13540, 13561; and 59 FR 41998, 42010 (August 16, 1994). 
    Therefore, the South Coast Air Quality Management District's approach 
    to dust control in Coachella Valley is not determinative of what 
    constitutes the implementation of RACM or BACM for the Phoenix 
    nonattainment area. As demonstrated in EPA's action on the microscale 
    plan, implementation of Rule 310's vacant lot provisions on a complaint 
    basis is not sufficient to prevent these sources from contributing 
    substantially to exceedances of the PM-10 NAAQS in the Phoenix area. 
    See 62 FR 31025, 31031. Furthermore, RACM and BACM are levels of 
    emission reduction control. See 59 FR 41998, 42010. In contrast, the 
    resources allocated for, and the method and frequency of, enforcement 
    are the means of ensuring that such emission reductions occur, but are 
    not themselves control levels.
        The provisions of Rule 310 require that RACM, as specified in the 
    rule, be implemented for the unpaved parking lots, unpaved roads and 
    vacant land source categories. Having adopted such a rule, the County 
    has notified the affected parties that they must comply with the rule's 
    requirements and must ensure that it has the resources and a program 
    for ensuring that compliance occurs. See CAA section 110(a)(2). 
    Moreover, since the County has purported to define what constitutes 
    RACM by the terms of its rule, it cannot then fail to ensure that those 
    measures are comprehensively enforced and still meet the requirement to 
    implement RACM in CAA section 189(a)(1)(C). If MCESD believes that Rule 
    310 as adopted represents a level of control for certain sources that 
    is beyond RACM or BACM, it is free to modify the rule and submit it to 
    EPA with the appropriate justification. EPA will then evaluate the 
    submittal for compliance with the CAA's RACM/BACM requirements.
        Comment: ACOC comments that the vacant lot ``Disturbed Surfaces'' 
    provision of the proposed FIP rule would impose a huge economic burden 
    on homebuilders and private landowners due to the fact that any amount 
    of disturbed surface area left vacant for more than fifteen days is 
    subject to the rule. Also, the average private citizen would likely be 
    unaware of this requirement.
        Response: Since there is a de minimis vacant lot size, it is not 
    true that any amount of disturbed area is subject to the rule. In the 
    final rule, EPA has increased the de minimis threshold from 0.10 to 
    0.50 acre of disturbed surface for stabilization of disturbed surfaces. 
    In any case, the rule does not pose a huge economic burden on 
    homebuilders; homebuilders need to receive a permit under Maricopa 
    County Rules 200 and 310 for earth-moving operations over 0.1 acres, 
    and are therefore not regulated under the FIP rule. However, should 
    homeowners prepare vacant property for construction by scraping and 
    leave the surface disturbed for over 15 days prior to construction and 
    permit applicability, they are subject to the FIP rule. EPA based the 
    fifteen-day time period on language in MCESD's Rule 310 and believes it 
    is appropriate as the disturbed vacant lot will be a continual dust 
    source until re-stabilized. EPA plans to provide outreach assistance to 
    vacant lot owners within the first eight months following the effective 
    date of the final rule prior to the required RACM implementation 
    deadline in order to increase awareness of the FIP rule and its 
    requirements.
        FIP Rule Requirements. De Minimis Levels.
        Comment: Several commenters state that the requirement in the 
    proposed FIP rule to pave all public roads with 150 ADT is 
    unreasonable. Commenters believe that the 150 ADT threshold is 
    arbitrary, includes too many roads and is economically burdensome.
        Response: EPA believes that a higher ADT threshold is warranted and 
    represents a RACM level of control. Therefore, in the final FIP rule, 
    EPA has increased the ADT threshold from 150
    
    [[Page 41338]]
    
    to 250. This higher ADT threshold will relieve some of the cost burden 
    on public entities, while targeting the roads that cause the most PM-10 
    emissions. The final rule, with the 250 ADT threshold, will control 
    dust on roads which receive two vehicles every five minutes, on 
    average, throughout primary driving hours in a given day rather than 
    one vehicle every five minutes. EPA, through a contractor, will by the 
    end of 1998 acquire more data on the sources subject to the FIP rule, 
    including unpaved roads and their ADT. Should EPA determine in the 
    future, based on additional information, that the final FIP rule 
    requirements do not represent a RACM level of control for the Phoenix 
    area, the Agency will propose appropriate revisions to the FIP.
        Comment: The Grand Canyon Council of the Boy Scouts of America 
    comments that the FIP rule should provide a de minimis use level below 
    which requirements are not triggered. The Council claims that the 
    proposed FIP's unpaved parking lot provision does not allow reduced 
    compliance for lots that receive relatively little heavy use during the 
    year (but are used more than 35 days a year). The Council suggests a de 
    minimis level of ingress by fewer than 10 or 25 vehicles per day.
        Response: In the final rule, EPA addresses the Council's concern by 
    establishing an exempted use level for unpaved parking lots of 10 
    vehicles a day or less. Furthermore, since there are a number of 
    unpaved parking lots significantly larger than 5,000 square feet where 
    parking occurs only in a few localized areas, in the final rule, the 
    owner/operator is only required to implement RACM on the portion of a 
    lot (as opposed to the entire lot) on which vehicles park. 
    Notwithstanding regular use of an unpaved parking lot by 10 or fewer 
    vehicles, the rule offers flexibility for lots used no more than 35 
    days a year to require RACM controls only if over 100 vehicles park on 
    the lot and only for the duration that the vehicles are parked.
        Comment: MCESD comments that the 0.10 acre threshold for vacant 
    lots is an appropriate threshold at which to expect application of 
    controls, but that it is not reasonable to enforce all vacant lots at 
    this level, except for weed abatement operations. Several other 
    commenters suggest that a de minimis level of 0.10 acre for vacant lots 
    is too small. Commenters also state that the regulatory burden on small 
    residential property owners would be too high and that disturbed static 
    lots do not contribute significantly to PM-10 compared to disturbed 
    sites with active earth-moving operations. Commenters suggest that the 
    de minimis level be increased to one or five acres.
        Response: In the final rule, EPA has increased the RACM 
    implementation de minimis threshold for vacant lot requirements 
    concerning weed abatement and disturbed surface from 0.10 acre to 0.50 
    acre. The final rule's de minimis threshold of 0.50 acre is responsive 
    to commenter's concerns to focus the FIP rule on larger disturbed 
    areas; however, EPA does not believe a de minimis level greater than 
    0.50 acres is warranted given MCESD's belief that weed abatement 
    disturbing 0.1 acres merits control. Since the majority of vacant lot 
    disturbances are caused by weed abatement and an uncontrolled weed 
    abated lot would be covered by the requirements for disturbed surfaces, 
    EPA believes there is a need for consistency between the weed abatement 
    requirement and the disturbed surfaces requirement. Thus, EPA believes 
    that a 0.50 acre de minimis level is appropriate.
        EPA does not believe that the regulatory burden of the FIP rule 
    will be high on small residential property owners as the majority of 
    residential property owners have homes on their property. The FIP rule 
    does not apply unless the property is vacant and disturbed. Moreover, 
    the FIP rule only applies where a vacant property's disturbed surface 
    area is greater than the exemption levels. Where the FIP rule does 
    apply, property owners have a number of RACM from which to choose, 
    including lower cost alternatives such as re-vegetation and watering. 
    In some cases, vacant lots naturally re-stabilize with rainfall to form 
    a crust or they contain sufficient amounts of aggregate materials or 
    vegetation such that the standards set forth in the FIP rule are met. 
    For these reasons, EPA believes the commenters have over-estimated the 
    regulatory impact of the FIP rule on vacant lot owners. Finally, as 
    discussed in EPA's responses to comments regarding the cost impacts of 
    the FIP rule, because all of the RACM discussed above and found in the 
    FIP rule are already required by Maricopa County's Rule 310, the final 
    FIP rule does not impose any additional regulatory burden beyond Rule 
    310.
        Compliance Deadlines. Comment: The City of Phoenix comments that 
    the final rule should move the compliance deadline for disturbed 
    surfaces on vacant lots from eight months after the effective date of 
    the rule to June 10, 2000. The City claims this is needed in order to 
    ensure that property owners become aware of the rule and to implement 
    dust control measures.
        Response: EPA believes an eight-month period of time is sufficient 
    to conduct public outreach to vacant lot owners regarding FIP rule 
    requirements to stabilize property or erect barriers. EPA plans to 
    provide outreach assistance to vacant lot owners within the first eight 
    months following the effective date of the final rule prior to the 
    required RACM implementation deadline in order to increase awareness of 
    the rule and its requirements. The only reason the RACM deadline for 
    public unpaved roads is June 10, 2000 is due to EPA's recognition that 
    public entities require additional time to budget funds to implement 
    RACM. EPA believes that the majority of vacant lots with disturbed 
    surfaces can be stabilized (unless further disturbed) by applying water 
    or re-vegetating, thus, a long time-frame for implementing RACM is 
    unwarranted. Notwithstanding the initial eight-month time frame for 
    RACM implementation, the final rule requires that RACM be implemented 
    within two months following a disturbance.
        Comment: MCDOT and MCESD comment that the June 10, 2000 deadline 
    for RACM to be implemented on roads with 150 ADT or more is not 
    feasible due to the large amounts of material and/or chemicals needed 
    and the time needed to complete roadway design, right-of-way 
    acquisition and construction. They state that no other attainment area 
    has been required to establish a deadline for completion of 
    stabilization of unpaved surfaces. MCESD and ADEQ suggest that a more 
    appropriate and realistic compliance target should be an established 
    schedule that extends beyond June 2000 for treating public unpaved 
    roads using ADT to establish priorities.
        Response: Since EPA has increased the ADT threshold to 250 in the 
    final rule, there will be fewer roads which require controls under the 
    FIP rule by June 2000. The June 10, 2000 deadline has not been 
    established by EPA arbitrarily. As discussed in the proposed 
    rulemaking, the deadline for RACM implementation after the statutory 
    deadline of December 10, 1993 is as soon as practicable. 63 FR 15920, 
    15926. EPA does not believe it achieves the purposes of the CAA to 
    allow long-delayed RACM implementation to extend beyond June 10, 2000 
    the statutory deadline for the implementation of BACM.
        Comment: MCESD, ADEQ and the City of Mesa comment that the proposed 
    FIP rule's requirement that a dust control plan (DCP) for weed 
    abatement be submitted 60 days in advance is impractical, given that 
    there is a fire
    
    [[Page 41339]]
    
    endangerment concern between the time weed abatement public notices are 
    issued and a 60-day lead time to submit a DCP to EPA.
        Response: In the final rule, EPA has eliminated the requirement 
    that DCPs for weed abatement be submitted to EPA for approval. Instead, 
    the final rule establishes RACM requirements for conducting weed 
    abatement on vacant lots. The RACM are those dust control measures that 
    EPA would have expected to see in a DCP. The RACM are written broadly 
    enough to allow responsible parties flexibility in what measures they 
    use to control dust, provided that the surface is stabilized 
    immediately following weed abatement to the standards set forth in the 
    rule.
    
    Alternative Control Measures (ACMs)
    
        Comment: The City of Mesa comments that the provisions in the 
    proposed FIP rule for ACMs are unduly burdensome (in that they must be 
    submitted to EPA for approval). Rather, the City believes that if an 
    ACM renders the disturbed surface area stabilized without any ancillary 
    adverse impact, it should be encouraged.
        Response: EPA agrees with this comment and, in a proposed amendment 
    to the final FIP rule, the Agency intends to propose that ACMs be 
    listed among other RACM in each provision to which they apply. EPA 
    intends to propose that as long as the ACM meets the test method's 
    criteria for stabilization and does not involve use of a prohibited 
    material, prior EPA approval would not be required. Thus, the only ACM 
    that would be submitted to EPA would be one that does not involve 
    stabilizing an unpaved surface.
        Vacant Lot RACM. Comment: The City of Phoenix comments that EPA 
    should allow alternatives for controlling dust from vacant lots where 
    vehicles have caused the disturbed surface in addition to posting signs 
    or barriers. The City claims that these controls are required 
    regardless of the severity of the disturbance or implementation of 
    other dust control measures, such as gravel.
        Response: In the final FIP rule, EPA adds gravel and chemical/
    organic stabilizers to the list of RACM in the ``Motor Vehicle 
    Disturbances'' provision. Therefore, a vacant lot owner may comply with 
    both the ``Disturbed Surfaces'' and ``Motor Vehicle Disturbances'' 
    requirements by applying one control measure. Applying gravel or 
    stabilizers are the only RACM specified in the rule modification since 
    other control measures listed under the ``Disturbed Surfaces'' 
    requirement do not ensure dust control should further vehicle trespass 
    occur.
        Comment: Several commenters question the technical justification 
    for a 2-inch gravel requirement, suggesting that two inches of gravel 
    may not be necessary in all cases to control particulate matter 
    sufficiently.
        Response: EPA has eliminated reference in the FIP rule to 2 inches 
    of gravel. Since the final rule requires that gravel be applied and 
    maintained to a sufficient extent necessary to result in a stabilized 
    surface, the test method will be the sole indicator of whether a source 
    is sufficiently graveled.
        Test Methods. Comment: MCESD and the City of Mesa comment that the 
    proposed visible crust test method for vacant lots would not be 
    appropriate since local native soil crusts may crumble easily and 
    measure less than 0.6 centimeters in thickness, yet still form a 
    protective surface. ACOC and the Salt River Project (SRP) also question 
    the scientific substantiality of the proposed visible crust test 
    method.
        Response: In response to comments on the FIP proposal, EPA recently 
    conducted the proposed test methods on sources in the Phoenix non-
    attainment area. As a result of the findings, in a forthcoming proposed 
    amendment to the final FIP rule, EPA will propose a new test method for 
    visible crusts that involves dropping a small steel ball from a height 
    of one foot and checking for pulverization of the surface. EPA believes 
    that this new method allows a higher degree of replicability than the 
    existing visible crust test method and is a better indicator of whether 
    the crust is sufficiently protective given variations in soils.
        Comment: Several commenters mention that the requirement in the 
    proposed FIP rule that the visible opacity of vehicles be tested at a 
    specific speed on unpaved roads and unpaved parking lots is impractical 
    and may be unsafe/illegal.
        Response: EPA has eliminated the speed limit requirement in the 
    final rule. In a forthcoming proposed amendment to the final FIP rule, 
    EPA will propose a new test method for unpaved roads and unpaved 
    parking lots that involves collecting a surface sample as opposed to 
    conducting a visible opacity test at a certain vehicle speed.
        Comment: Several commenters suggest that the proposed test methods 
    are too complex to be understood and utilized by property owners who 
    must comply with the rule.
        Response: EPA has eliminated the speed limit requirements from the 
    test method in the final rule. In its forthcoming proposed amendment to 
    the final FIP rule, EPA will propose to eliminate the opacity test 
    method for visible emissions from unpaved roads and unpaved parking 
    lots. The opacity test method requires opacity readings to be taken by 
    persons certified in visible emissions training. EPA agrees that this 
    test method is too complex for most property owners to attempt. 
    Regarding the remaining test methods in the final rule, EPA believes 
    much of the perceived complexity is a result of technical language 
    which is necessary to ensure the test methods are enforceable. A 
    certain minimum amount of complexity is necessary to ensure that the 
    test methods can be repeated by more than one individual consistently 
    and accurately, as well as to ensure that they do not result in over-
    controlling sources. EPA plans to provide outreach assistance to 
    property owners which will explain the test methods in layman's terms 
    and provide information on the commercially available resources needed 
    to conduct them.
        Enforcement of FIP Rule. Comment: ACLPI states that while it 
    supports EPA's proposal to provide more enforcement resources for Rule 
    310, the staff provided will still be grossly inadequate. ACLPI notes 
    that EPA does not explain why just two additional inspectors will be 
    adequate. ACLPI states that the Governor's Air Quality Strategies Task 
    Force in 1998 preliminarily recommended that the County add 9 new 
    positions for Rule 310 enforcement and that, to comply with the RACM 
    mandate, Maricopa County must have the same or better enforcement 
    resources than other air districts which have enforcement staffs of 
    such size (or larger). ACLPI also claims that EPA's proposal also fails 
    to provide the legal resources necessary to enforce against violators 
    detected by the inspectors and believes that the FIP should require the 
    County (or EPA) to have a full time attorney to conduct enforcement 
    cases under Rule 310.
        While welcoming EPA's proposal to provide additional enforcement 
    resources, ACLPI urges that the Agency take steps to ensure that such 
    action does not encourage continuing and repeated avoidance by the 
    County of its obligation to provide these enforcement resources. ACLPI 
    asserts that one appropriate step would be for EPA to impose mandatory 
    or discretionary sanctions on the County for its failure to adequately 
    fund Rule 310 enforcement and suggests that if this or other steps are 
    not taken, local and state governments will underfund the programs and 
    wait for EPA to impose a FIP that includes federal enforcement dollars.
    
    [[Page 41340]]
    
        Response: EPA would like to clarify at the outset that the 
    discussion in the proposed rulemaking to which ACLPI refers addressed 
    the Agency's compliance approach for the proposed FIP rule, and not 
    Rule 310. Thus, to the extent that ACLPI's comments are directed to the 
    inadequacy of Maricopa County's program for Rule 310 enforcement, they 
    are not germane to this rulemaking.24 In particular, ACLPI's 
    remarks regarding inspection and enforcement resource levels for Rule 
    310 are entirely inapplicable. The statistics ACLPI cites from the 
    Governor's Task Force Report relate to resources for the entire 
    universe of sources, both permitted and unpermitted, regulated under 
    Rule 310. The scope of the FIP rule, however, is considerably narrower 
    than that of Rule 310 in that it only addresses vacant lots, unpaved 
    parking lots, and unpaved roads, all fugitive dust sources not 
    permitted under Rule 310.25
    ---------------------------------------------------------------------------
    
        \24\ That said, EPA agrees that the resources devoted by the 
    County to compliance with Rule 310 are inadequate with respect to 
    unpermitted sources and made such a finding in its action on the 
    State's microscale plan. 62 FR 41856, 41860. In a March 10, 1998 
    letter to Al Brown, Director, MCESD, EPA stated that to replace the 
    FIP rule, MCESD must submit, as a SIP revision, a credible Rule 310 
    enforcement strategy that demonstrates that the County has adequate 
    resources of its own to ensure that Rule 310 is fully implemented 
    for all fugitive dust sources. In this regard, EPA supports the 
    additional resource levels recommended by the Governor's Task Force 
    and understands that MCESD is in the process of trying to obtain 
    them for the purpose of fully implementing Rule 310.
        \25\ The statistics ACLPI cites on the enforcement resources of 
    other air districts represent the total number of inspectors for 
    each of these districts to conduct all air quality inspections for 
    all pollutant sources. Therefore, these staffing levels cannot be 
    used as evidence that MCESD underfunds its fugitive dust program.
    ---------------------------------------------------------------------------
    
        To the extent that ACLPI's judgments may call into question the 
    adequacy of EPA's enforcement of its own rule, EPA would like to 
    clarify its FIP compliance program in two respects.26 First, 
    in implementing the FIP rule, EPA is constrained by the remote location 
    of its Regional Office in San Francisco. Because of that constraint, 
    EPA believes that its compliance program for the FIP rule will benefit 
    substantially by some kind of local presence. Therefore, EPA will be 
    funding two inspectors to be provided to MCESD for fiscal year 1999 
    (October 1, 1998 through September 30, 1999). The primary 
    responsibility of these inspectors will be to ensure compliance with 
    the FIP rule.27 If the FIP rule remains in place after 
    September 1999, continuation of these inspector positions will depend 
    on whether additional funding can be secured by EPA.
    ---------------------------------------------------------------------------
    
        \26\ The program is discussed further in the FIP proposal at 63 
    FR 15920, 15938-15939.
        \27\ Nevertheless, these two inspectors will also have the 
    opportunity to identify and report Rule 310 violations. Thus they 
    will be able to provide some incidental assistance to MCESD's Rule 
    310 compliance efforts.
    ---------------------------------------------------------------------------
    
        Second, as discussed in the proposed rulemaking, in addition to the 
    two inspectors assigned to MCESD, the Agency will have at its disposal 
    legal and technical personnel from its San Francisco office to ensure 
    compliance with the FIP rule by conducting periodic joint inspections 
    with MCESD and undertaking enforcement actions.
        Finally, EPA is somewhat perplexed by ACLPI's suggestion that, in 
    the absence of federal CAA sanctions, local and state governments will 
    underfund their Rule 310 enforcement program and wait for EPA to impose 
    a FIP with federal enforcement dollars. As just explained, EPA is not 
    in the FIP providing either funding or positions for the benefit of 
    MCESD. Moreover, it has been the Agency's experience that the specter 
    of an active federal presence in local affairs acts as a powerful 
    motivator, a view that ACLPI itself has historically advanced. Indeed, 
    the recent adoption of State legislation regulating PM-10 emissions 
    from agricultural activities is evidence of such an effect.
    
    C. Impracticability Demonstration
    
        The CAA requires moderate PM-10 nonattainment areas to demonstrate 
    attainment of the PM-10 annual and 24-hour standards, or to show that 
    attainment by the statutory deadline is impracticable. See section 
    189(a)(1)(B). For this FIP, EPA has demonstrated that existing State 
    controls, together with the RACM being promulgated by EPA, are not 
    sufficient for attainment of either the 24-hour or the annual PM-10 
    standard by December 31, 2001.28
    ---------------------------------------------------------------------------
    
        \28\ Under CAA section 189(c)(1), the moderate area attainment 
    deadline was December 31, 1994. The Phoenix nonattainment area is 
    now classified as serious. As a result, for the purposes of this 
    moderate area FIP and the State's serious area SIP, the attainment 
    deadline is December 31, 2001. CAA section 189(c)(2).
    ---------------------------------------------------------------------------
    
    1. Annual Standard
        EPA based its annual standard attainment analysis on air quality 
    modeling for the 1995 year performed by the Maricopa Association of 
    Governments for Phoenix serious area PM-10 plan that is currently under 
    development. See 63 FR 15920, 15939.
        As can be seen in Table 2, even assuming 100 percent control for 
    sources subject to the FIP rule and the commitment for the agricultural 
    sector (an unrealistic level of control; actual control levels will be 
    less), simulated concentrations are still over the annual standard of 
    50 ``g/m\3\. Thus, pursuant to CAA section 189(a)(1)(B), EPA 
    is finding that attainment of the annual PM-10 standard by December 31, 
    2001 is impracticable with the implementation of RACM.
    
            Table 2.--Annual Standard Impracticability Demonstration        
    ------------------------------------------------------------------------
                                   Concentration               Concentration
                                     after SIP      Maximum      after FIP  
           Source category            controls      possible      controls  
                                    g/     control     g/ 
                                        m\3\       (percent)        m\3\    
    ------------------------------------------------------------------------
    Paved road dust..............           20.   ...........           20.0
    Unpaved road dust............            2.9          100            0.0
    Gasoline and Diesel vehicle                                             
     exhaust.....................            1.2  ...........            1.2
    Agricultural dust............            0.2          100            0.0
    Other area sources...........            1.4  ...........            1.4
    Residential wood combustion..            0.4  ...........            0.4
    Construction/earth moving....            5.4  ...........            5.4
    Construction equipment,                                                 
     locomotives, other non-road                                            
     engines.....................            1.4  ...........            1.4
    Major point sources..........            0.2  ...........            0.2
    Windblown dust...............            0.4          100            0.0
    Anthropogenic Total..........           33.5  ...........           30.0
    Background...................           22    ...........           22  
        Total....................           55.5  ...........           52.0
    ------------------------------------------------------------------------
    
    
    [[Page 41341]]
    
    2. 24-hour Standard
        EPA based its 24-hour standard attainment analysis on air quality 
    modeling of exceedances at four monitoring sites that was performed by 
    ADEQ for the microscale plan. The four monitoring sites are: (1) Salt 
    River, in an industrial area; (2) Gilbert, affected by agricultural and 
    unpaved parking lot fugitive dust emissions; (3) Maryvale, with 
    disturbed cleared areas nearby due to construction of a park; and (4) 
    West Chandler, near a highway construction project. These sites were 
    selected to represent a variety of conditions within the Maricopa 
    nonattainment area. See 63 FR 15920, 15939.
        The microscale plan demonstrated attainment at the Salt River and 
    Maryvale sites, and EPA approved the attainment demonstrations at these 
    sites at the time it took final action on the microscale plan. 62 FR 
    41856, 41862. The microscale plan did not demonstrate attainment at the 
    West Chandler and Gilbert sites. These sites are addressed here.
        The FIP rule requires RACM for unpaved roads, vacant lots, and 
    unpaved parking lots. These sources in total contribute 25 percent of 
    the emissions to the exceedance at the Gilbert site and just 1 percent 
    of the emissions to the exceedance at the West Chandler site. The FIP 
    rule has a substantial impact for the Gilbert site, reducing ambient 
    concentrations from 213 to 176 ``g/m3 but much less 
    effect at West Chandler, reducing concentrations from 332 to just 316 
    ``g/m3. See Table 3. Because the FIP rule does not 
    result in attainment at either site, EPA is finding that attainment of 
    the 24-hour standard is impracticable with the implementation of RACM.
        As can be seen from Table 3, attainment at both sites will require 
    substantial reductions from agricultural sources in addition to 
    reductions from unpaved roads, unpaved parking lots, and vacant lots. 
    While reductions from agricultural sources are expected through the 
    implementation of BMPs by 2001, EPA is unable to quantify the impact of 
    these BMPs at this time because they have not yet been developed. 
    Therefore it is not possible to determine an expected level of control. 
    Once the BMPs have been defined, EPA will be better able to estimate 
    reductions from agricultural sources and will revisit this 
    impracticability demonstration for the 24-hour standard and modify the 
    demonstrations as necessary.
    
                         Table 3--Impracticability Demonstration for the 24-hour PM-10 Standard                     
    ----------------------------------------------------------------------------------------------------------------
                                                   Concentration after SIP                  Concentration after FIP 
                                                   controls g/m3    FIP control    controls g/m3  
                  Source category               ----------------------------  (percent)  ---------------------------
                                                   Chandler       Gilbert                   Chandler       Gilbert  
    ----------------------------------------------------------------------------------------------------------------
    Agricultural fields........................         194.7  ............  ...........         194.7              
    Agricultural aprons........................          21.7          55.6  ...........          21.7          55.6
    Road construction..........................           6.9  ............  ...........           6.9              
    Unpaved roads..............................           0.5           0.5           64           0.2           0.2
    Paved Roads................................           0.2           1.6  ...........           0.2           1.6
    Unpaved parking lots.......................  ............          51.3           56  ............          22.6
    Vacant lots................................          28.1          14.5           56          12.4           6.4
    Anthropogenic Total........................         252.1         123.4  ...........         236.1          86.3
    Background.................................          80            90    ...........          80            90  
                                                --------------------------------------------------------------------
        Total..................................         332.1         213.4  ...........         316.1         176.3
    ----------------------------------------------------------------------------------------------------------------
    
        See section IV.D. below for a discussion of the estimated emission 
    reductions from the FIP control measures.
        EPA received a number of comments on the proposed impracticability 
    demonstrations. The most significant comments have been addressed below 
    and all comments have been fully addressed in the Response to Comments 
    TSD.
        Comment: ACLPI comments that EPA's impracticability demonstration 
    is flawed because it does not include all RACM and uses an unapproved 
    state model. ACLPI asserts that EPA's failure to include so called ``de 
    minimis'' measures in the FIP, as well as the other measures the Agency 
    has excluded from the FIP, could very well make the difference between 
    the showing of impracticability and a showing of attainment. ACLPI 
    notes that under the analysis in Table 5 of the proposed rulemaking, 
    the FIP measures could reduce annual PM-10 levels to 52 g/
    m3--only 2 g/m3 over the standard and 
    yet EPA's ``de minimis'' policy allows the Agency to avoid adopting any 
    measures that produce less than 1 g/m3 in 
    improvement and thus, an additional package of ``de minimis'' measures 
    could well make the difference between attainment and nonattainment. 
    Based on the data in Table 2 of the proposed rulemaking, ACLPI asserts 
    that, combined, the ``de minimis'' sources in that table would reduce 
    PM-10 by 4.0 g/m3 on an annual basis--more than 
    enough to produce attainment based on the data in Table 5 of the 
    Proposed rulemaking. The Center concludes that far from showing 
    impracticability, EPA's analysis shows that timely attainment is 
    practicable with the adoption of additional measures that are already 
    identified and for which there is no reasoned justification to reject.
        Response: EPA believes that ACLPI's comment addresses only the 
    impracticability demonstration for the annual standard and is 
    responding to it on that basis. As noted above, EPA used the State's 
    modeling as the technical basis for this FIP. As such, the modeling was 
    subject to public comment as part of the FIP proposal and did not 
    require a prior CAA section 110(k) approval for EPA to use it. EPA also 
    demonstrated that it has included all RACM available to it in the 
    impracticability demonstration. See section IV.A.
        The projected 52 g/m \3\ concentration in Table 5 of the 
    proposed rulemaking assumes complete elimination of emissions from 
    unpaved roads, agricultural dust, and windblown dust--an unrealistic 
    level of control. See 63 FR 15920, 15939. There is currently 
    insufficient information to accurately calculate regional reductions 
    from the FIP measure for unpaved parking lots, vacant lots, and the 
    commitment for agricultural controls. By showing that attainment would 
    still not result even with 100 percent control on these sources, EPA 
    was able to find that attainment of the annual standard is 
    impracticable with the implementation of RACM. However, because it was 
    derived from an assumption of 100
    
    [[Page 41342]]
    
    percent control, the projected 52 g/m \3\ annual level is too 
    optimistic and the actual concentration after implementation of the FIP 
    RACM will be higher.
        The total impact of all de minimis source categories combined is 
    3.4 g/m \3\, or less than 10 percent of the exceedance of the 
    annual PM-10 standard at the Greenwood monitor.29 Attainment 
    at the Greenwood monitor would require elimination of more than half 
    the emissions from these sources in addition to eliminating all 
    emissions from the sources subject to the FIP measures. These de 
    minimis sources include on-road motor vehicles (already subject to 
    tailpipe standards, I/M, and clean fuel requirements), residential wood 
    combustion (already controlled at RACM levels), all other combustion 
    sources, and major point sources (already subject to RACT). No measures 
    exist that could reduce emissions from these sources by more than half 
    by the end of 2001, short of banning or substantially curtailing their 
    operations; neither option would constitute a reasonable level of 
    control. A more practicable approach to attaining the standard at 
    Greenwood is to a obtain the needed emission reductions from the source 
    categories that contribute significantly to the nonattainment problem 
    at the Greenwood monitor, source categories such as unpaved road dust 
    and paved road dust. EPA is promulgating a rule in this FIP to reduce 
    emissions substantially from unpaved roads and EPA evaluated a large 
    number of measures to reduce emissions from paved roads (including many 
    transportation control measures) and found none that were RACM for the 
    Agency.
    ---------------------------------------------------------------------------
    
        \29\ The total sum of the impact of the de minimis source 
    categories listed on Table 2 of the Proposed rulemaking is 4.0 
    g/m \3\; however, in this FIP both agricultural dust and 
    windblown dust are considered significant sources because they are 
    significant sources for the 24-hour standard. As result the total 
    impact of de minimis sources at the Greenwood monitor is only 3.4 
    g/m \3\.
    ---------------------------------------------------------------------------
    
    D. Reasonable Further Progress Demonstrations
    
        As discussed in the proposal, EPA interprets the RFP requirement 
    for areas demonstrating impracticability as being met by showing that 
    the implementation of all RACM has resulted in incremental emission 
    reductions below pre-implementation levels. See 63 FR 15920, 15927.
        RFP is demonstrated separately for the annual and 24-hour standards 
    because in the Phoenix area the mix of sources contributing to the 
    annual standard exceedances differs from that contributing to the 24-
    hour exceedances. In addition, since PM-10 exceedances in the Phoenix 
    area are related almost entirely to primarily-emitted PM-10, only 
    emissions of primarily-emitted PM-10 are evaluated for RFP.
        EPA has revised the annual standard RFP demonstration from the 
    proposal to reflect the changes to the FIP fugitive dust rule. Although 
    EPA does not believe that annual incremental reductions are required to 
    be shown for moderate PM-10 nonattainment areas demonstrating 
    impracticability, EPA has also revised the RFP tables (Tables 7, 8, and 
    9) from the proposal to show that the FIP does, in fact, result in 
    annual incremental reductions. See section IV.D.1. below.
        EPA received a number of comments on its interpretation of the RFP 
    requirement for areas demonstrating impracticability as well as on the 
    specifics of the RFP demonstration. EPA responds to the most 
    significant comments in section IV.D.2. below and to all comments 
    received in the response to comments TSD found in the docket for this 
    rulemaking.
    1. Revised RFP Demonstrations
        a. Annual Standard. EPA has revised the annual standard RFP 
    demonstration to account for the increased ADT threshold for controls 
    on unpaved roads in the FIP fugitive dust rule. Revisions to the FIP 
    rule's provisions for vacant lots or unpaved parking lots did not 
    affect the annual standard RFP demonstration because no reductions were 
    assumed from these sources in the proposed demonstration. The final 
    annual standard RFP demonstration showing incremental reductions 
    between 1998 and 2001 is presented in Table 4.
        Emission levels for 1998, 1999, 2000, and 2001 were calculated by 
    growing emissions from the emission inventory base year of 1994 and the 
    modeling year of 1995 based on growth factors provided by MAG and by 
    incorporating reductions from approved State RACM and BACM controls. 
    Emissions levels for 2000 and 2001 also reflect the estimated emission 
    reductions from the FIP rule for unpaved roads. The estimated 
    effectiveness of controls on unpaved roads, 80 percent, was based on 
    the research done for the microscale plan on the effectiveness of 
    controls for unpaved parking (see Table 4-1 in the final microscale 
    plan) and assumes a rule effectiveness of 80 percent per EPA's guidance 
    (57 FR 13503). EPA has not changed these estimated control and rule 
    effectiveness percentages in this final demonstration; however, the 
    Agency estimates that the increase in the ADT applicability threshold 
    in the FIP rule will reduce the total unpaved road VMT impacted by the 
    rule from 90 percent to 50 percent.
        The annual standard RFP demonstration did not include emission 
    reductions from the implementation of the FIP rule for unpaved parking 
    lots and vacant lots. Although emission reductions are expected from 
    these sources starting in 1999, there currently is insufficient 
    information on the number of unpaved parking lots and vacant lots that 
    will be subject to the FIP to estimate an emission reduction. 
    Information from the surveys EPA will perform after promulgation of the 
    rule will help in quantifying emission reductions from these sources. 
    In addition, while reductions from agricultural sources are also 
    expected starting in 2000, no emission reductions were assumed in the 
    RFP demonstration for agricultural sources because the ultimate RACM 
    have not been defined and therefore the expected level of control 
    cannot be determined. Because the reductions expected from vacant lots, 
    unpaved parking lots, and agricultural sources cannot at this time be 
    quantified, the showing that the FIP will result annual incremental 
    reductions is necessarily qualitative.
        As can be seen in Table 4, in order to show annual reductions from 
    1998 to 1999, emission reductions of more than 87 mtpy would need to 
    result from the implementation of the FIP fugitive dust on vacant lots 
    and unpaved parking lots. The total regional inventory for unpaved 
    parking lots is currently unknown. The regional inventory for vacant 
    lots, however, is estimated to be 2020 mtpy in 1999. See RFP TSD. The 
    FIP rule will need to reduce emissions in this category by a little 
    more than 4 percent in order to demonstrate annual incremental 
    reductions. Because application of dust control measures to a disturbed 
    surface is expected to reduce fugitive dust from that surface by 56 
    percent (see 63 FR 15920, 15941), EPA is confident that the rule will 
    achieve at least a 4 percent overall reduction in regional fugitive 
    dust emissions from vacant lots sufficient to show reductions in total 
    regional PM-10 emissions from 1998 to 1999. 30
    ---------------------------------------------------------------------------
    
        \30\ This conclusion is supported by noting that the estimated 
    reductions from applying the FIP rule to one vacant lot for one day 
    at the Chandler monitoring site is 3.5 metric tons per windy day, 4 
    percent of the total annual reductions needed to show an incremental 
    reduction from 1998 to 1999.
    ---------------------------------------------------------------------------
    
        As can be also be seen in Table 4, in order to show annual 
    reductions from 2000 to 2001, emission reductions of more than 239 mtpy 
    would need to
    
    [[Page 41343]]
    
    result from the implementation of the BMPs on agricultural sources. The 
    projected regional inventory for agricultural sources is 6,972 mtpy in 
    2001. See RFP TSD. The FIP rule will need to reduce emissions in this 
    category by slightly more than 3 percent in order to demonstrate annual 
    incremental reductions between 2000 and 2001. Again, EPA has every 
    confidence that such minimal reductions can be achieved.
    
               Table 4.--RFP Demonstration for the Annual Standard          
    ------------------------------------------------------------------------
                                               Total PM-10 emissions metric 
                      Year                              tons/year           
    ------------------------------------------------------------------------
    1998...................................  61,017.                        
    1999...................................  61,104--reductions from vacant 
                                              lots and unpaved parking lots.
    2000...................................  57,607--reductions from vacant 
                                              lots and unpaved parking lots.
    2001...................................  57,846--reductions from vacant 
                                              lots, unpaved parking lots,   
                                              agricultural sources.         
    ------------------------------------------------------------------------
    
        b. 24-hour Standard. For the 24-hour standard, EPA evaluated RFP 
    only for the Gilbert and West Chandler sites, having already approved 
    the RFP demonstrations at the Maryvale and Salt River sites as part of 
    its action on the microscale plan. 62 FR 41856, 41862.
        Changes to the FIP fugitive dust rule do not affect the emission 
    reductions assumed in the proposed RFP demonstrations for the 24-hour 
    standard because the rule will continue to apply in the same manner and 
    to the same extent as was assumed in the proposal. In other words, the 
    changes to the FIP rule do not affect its application to the sources 
    surrounding the Gilbert and West Chandler sites.
        As with the annual standard demonstration, 1998 emission levels 
    were adjusted to reflect implementation of the improved controls on 
    construction sources and 2001 emissions levels to reflect the estimated 
    emission reductions from the proposed FIP rule for unpaved roads, 
    unpaved parking lots, and vacant lots. Emission reductions estimates 
    are again based on the research done for the microscale plan and assume 
    a rule effectiveness of 80 percent per EPA's guidance. For unpaved 
    roads, a control effectiveness of 80 percent is assumed. For vacant 
    lots and unpaved parking lots, a control effectiveness of 70 percent is 
    assumed. As with the annual standard, no emission reductions were 
    assumed for agricultural sources. A more detailed analysis of the RFP 
    demonstrations for the Gilbert and West Chandler monitors can be found 
    in the RFP TSD.
        i. Gilbert Monitoring Site. The 24-hour exceedances at the Gilbert 
    monitor are impacted by emissions from agricultural aprons, disturbed 
    cleared lands (i.e., vacant lots), unpaved parking lots, and paved 
    roads. 62 FR 31025, 31031. As can be seen from Table 5, the emission 
    reductions from the FIP rule and commitment for unpaved parking lots 
    and vacant lots and agricultural sources are sufficient to assure 
    incremental emission reductions between 1998 and 2001 and annual 
    incremental reductions 31 in the interim years. EPA, 
    therefore, finds that the FIP assures RFP for the 24-hour standard at 
    the Gilbert monitor.
    ---------------------------------------------------------------------------
    
        \31\ While there is no change in total emissions from 1999 to 
    2000, EPA believes that annual incremental reductions are still 
    shown because of the large reduction occurring in the early years 
    between 1998 and 1999.
    
                                          Table 5.--RFP Demonstration for the 24-hour Standard--Gilbert Monitoring Site                                     
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                          Emissions(kg/day)                                 
            Source categories                FIP control (%) year      -------------------------------------------------------------------------------------
                                                                            1998         1999         2000                          2001                    
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Agriculture aprons...............  0 (2001).......................          165          165          165  165 (-reductions from BMPs).                 
    Vacant lots......................  0.56 (1999)....................           76           33           33  33.                                          
    Unpaved parking lots.............  0.56 (1999)....................          190           84           84  84.                                          
    Paved roads......................  0..............................            5            5            5  5.                                           
                                      ----------------------------------------------------------------------------------------------------------------------
        Total........................  ...............................          436          287          287  287 (-reductions from BMPs).                 
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    
        ii. West Chandler Monitoring Site. The 24-hour exceedances at the 
    West Chandler monitor are impacted by emissions from agricultural 
    fields, agricultural aprons, road construction, disturbed cleared lands 
    (i.e., vacant lots), unpaved roads, and paved roads. 62 FR 31025, 
    31032. As can be seen from Table 6, the emission reductions from the 
    FIP rule for unpaved roads and vacant lots and and the commitment for 
    controls on agricultural sources are sufficient to assure incremental 
    emission reductions between 1998 and 2001 and annual incremental 
    reductions in the interim years; therefore, EPA finds that the FIP 
    assures RFP for the 24-hour standard at the West Chandler monitor.
    
                                       Table 6.--RFP Demonstration for the 24-hour Standard--West Chandler Monitoring Site                                  
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                        Emissions (kg/day)                                  
             Source category               FIP control (%) Year      ---------------------------------------------------------------------------------------
                                                                          1998         1999         2000                           2001                     
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Agriculture.....................  0 (2001)......................        19378        19378        19378  19378 (-reductions from BMPs).                 
    Vacant lots.....................  0.56 (1999)...................         6188         2723         2723  2723.                                          
    Road Construction...............  0.............................          440          440          440  440.                                           
    Agricultural apron..............  0 (2001)......................         1954         1954         1954  1954 (-reductions from BMPs).                  
    Unpaved road....................  0.64 (2000)...................           49           49           18  18.                                            
    Paved roads.....................  0.............................           37           37           37  37.                                            
                                     -----------------------------------------------------------------------------------------------------------------------
        Total.......................  ..............................        28046        24581        24550  24550 (-reductions from BMPs).                 
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    
    
    [[Page 41344]]
    
    2. Response to Comments on the RFP Demonstration
        EPA has responded to the most significant comments on the proposed 
    RFP demonstration below. The TSD contains EPA's response to all 
    comments received.
        Comment: ACLPI asserts that section 172(c)(2) of the Act 
    specifically requires all nonattainment area SIPs to show RFP, and that 
    both the Act and longstanding EPA guidance require that, to satisfy the 
    RFP requirement, plans must provide for annual reductions in total 
    emissions sufficient to produce steady progress toward attainment on a 
    straight line basis or faster, citing CAA section 171(1) and 59 FR 
    41988, 42016 (August 16, 1994); 52 FR 45044, 45066 (November 24, 1987); 
    46 FR 7182, 7185 (January 22, 1981); EPA, Guidance Document for 
    Correction of Part D SIP's for Nonattainment Areas (January 27, 1984). 
    ACLPI disagrees with EPA's claim that for moderate areas demonstrating 
    impracticability, the Act's RFP requirement is met by a showing that 
    implementation of all RACM will result in ``incremental emission 
    reductions below pre-implementation levels.'' ACLPI asserts that the 
    Act does not in any way waive the RFP requirement for moderate PM-10 
    areas claiming impracticability and explicitly sets out RFP as a 
    requirement separate, distinct and in addition to RACM, comparing 
    section 172(c)(1)(RACM) with section 172(c)(2)(RFP). ACLPI claims that 
    EPA's reading of the RFP requirement for areas demonstrating 
    impracticability would render the RFP mandate a mere redundancy, a 
    result that is contrary to well-settled rules of statutory 
    construction, citing N.J. Singer, 2A Statutes & Statutory Constr. 
    Sec. 46.06 at 119-20 (1992 Rev.).
        Response: EPA agrees with ACLPI that the RFP requirement in section 
    172(c)(2) is a separate and distinct requirement for nonattainment 
    plans that is in addition to the requirement for RACM in section 
    172(c)(1). It also agrees that all nonattainment plans must address the 
    RFP requirement, including moderate area PM-10 plans demonstrating 
    impracticability. EPA has not waived the RFP requirement and has fully 
    addressed it in this FIP. See section IV.D.1. Section 171(1) of the CAA 
    defines RFP as:
    
        [S]uch annual incremental reductions in emissions of the 
    relevant air pollutant as are required by [Part D of title I of the 
    Clean Air Act] or may reasonably be required by the Administrator 
    for the purpose of ensuring attainment of the applicable national 
    ambient air quality standard by the applicable date.
    
        As seen from this definition, the adequacy of the emission 
    reductions required to demonstrate RFP is inextricably linked to the 
    reductions necessary to ensure attainment and thus to the control 
    strategy necessary for attainment. Because of this interconnection, EPA 
    has historically required RFP to be demonstrated by showing that 
    nonattainment plans provide for annual incremental emission reductions 
    sufficient generally to maintain at least linear progress toward 
    attainment by the applicable attainment deadline. See, e.g., 43 FR 
    21673, 21675 (May 19, 1978), Criteria for Proposing approval of 
    Revisions to [1979] Plans for Nonattainment Areas; 46 FR 7185 (January 
    22, 1981), Approval of 1982 Ozone and Carbon Monoxide Plan Revisions 
    for Areas Needing an Attainment Date Extension [under CAA section 
    172(a)(2)]; 59 FR 41988, 42016 (August 16, 1994), State Implementation 
    Plans for Serious PM-10 Nonattainment Areas. As described, for example, 
    in the 1978 guidance document, the required linear reductions were 
    represented graphically as a straight line drawn from the base year 
    (i.e., the submittal year for the plan) emission inventory to the 
    allowable emissions in the attainment year. RFP was shown if the annual 
    emission reductions were sufficient to produce this ``straight-line 
    rate.'' 32 See 43 FR 21675.
    ---------------------------------------------------------------------------
    
        \32\ This requirement for reductions on a ``straight-line rate'' 
    has never been absolute. EPA has stated that it would accept less 
    than a straight-line rate if the State could show that a lag was 
    necessary to accommodate the time required for compliance. See 43 FR 
    21675 and 44 FR 20372, 20377 (April 4, 1979). EPA has also noted 
    that in certain situations, such as where there are a limited number 
    of sources contributing to the nonattainment problem, where 
    requiring linear progress reductions in PM-10 emissions to maintain 
    RFP is less appropriate and in such situations an expeditious 
    compliance schedule can be used to demonstrate RFP. See 59 FR 41998, 
    42015.
    ---------------------------------------------------------------------------
    
        Since this straight-line rate demonstration requires a 
    determination of the emission reductions needed for attainment, the 
    guidance documents requiring linear progress for RFP in nonattainment 
    plans has always been predicated on the existence of a concurrent 
    statutory requirement that the nonattainment plan also demonstrate 
    attainment. These guidance documents, however, provide little help in 
    determining how RFP is to be demonstrated when a nonattainment plan is 
    statutorily allowed not to demonstrate attainment, as is the case with 
    certain moderate area PM-10 plans.
        Moderate area PM-10 plans demonstrating impracticability do not 
    include a projection of the allowable emissions in the attainment year. 
    Attainment projections for such areas are not required until submittal 
    of the subsequent serious area plan. Thus, for moderate plans 
    demonstrating impracticability, it is not possible to determine the 
    linear rate of reductions required under the RFP guidance for plans 
    demonstrating attainment because the line's end point, the allowable 
    attainment level, is missing. Put simply, EPA's previous interpretation 
    of and guidance for the RFP requirement in the Act do not work in areas 
    demonstrating impracticability. In such a situation, it is necessary 
    and appropriate to amend the previous guidance.33
    ---------------------------------------------------------------------------
    
        \33\ Under CAA section 193, guidance issued by EPA prior to the 
    1990 CAA Amendments remain in effect except to the extent that it is 
    inconsistent with any provision of the revised Act or is revised by 
    the Administrator. As will be seen, EPA has both found that its 
    previous RFP guidance requiring linear emission reductions is 
    inconsistent with the statutory provisions allowing demonstration of 
    impracticability for moderate PM-10 areas and revised that guidance 
    for such areas.
    ---------------------------------------------------------------------------
    
        EPA issued preliminary guidance on interpreting the RFP requirement 
    for moderate PM-10 areas demonstrating impracticability in its final 
    approval of the Phoenix moderate area PM-10 plan, noting that the 
    guidance was intended to clarify the confusion created by omissions in 
    the Act and in prior EPA guidance. See 60 FR 18010, 18013 (April 10, 
    1995). In that notice, EPA stated that RFP was demonstrated by showing 
    that the implementation of all RACM has resulted in ``incremental 
    reductions'' in emissions of PM-10. EPA clarified and further explained 
    this guidance in its proposal to restore the Agency's approval of the 
    Phoenix moderate area plan. See 61 FR 54972, 54973. As quoted above, 
    RFP is defined in section 171(1) as either annual incremental 
    reductions as are required under part D, or such reductions as the 
    Administrator may reasonably require ``for the purpose of ensuring 
    attainment of the [NAAQS] by the applicable date.'' In moderate PM-10 
    area plans demonstrating impracticability, there is no demonstration of 
    attainment, simply a demonstration that, even after the implementation 
    of all RACM, it is impracticable for the area to attain the PM-10 
    standard by the applicable attainment deadline. Once EPA has determined 
    that all reasonable control measures that are available have been 
    implemented and timely attainment still will not occur, there are no 
    further reductions that it would be reasonable to require ``for the 
    purpose of ensuring attainment'' by the applicable attainment deadline. 
    Thus, the emissions reductions achieved through
    
    [[Page 41345]]
    
    implementation of all RACM, by definition, would satisfy the 
    requirement to demonstrate reasonable further progress in the period 
    before the Act requires a new plan that includes the additional 
    measures needed to produce the net emissions reductions required for 
    attainment.
        Moreover, EPA's interpretation is reasonable given the Act's scheme 
    for PM-10 attainment. Among all the Act's numerous nonattainment 
    requirements, the moderate area PM-10 provisions are unique in 
    tolerating a planned failure to demonstrate attainment and deferring 
    the obligation to demonstrate attainment to a later plan. EPA's 
    interpretation of the general RFP requirement in section 172(c)(2), as 
    it applies to moderate PM-10 areas demonstrating impracticability, must 
    not only meet the Act's definition of RFP but must also be consistent 
    with the statutory scheme for PM-10 attainment. For the reasons stated 
    above, EPA believes that its interpretation of the RFP requirement for 
    areas demonstrating impracticability is consistent with this scheme. 
    Requiring RFP demonstrations to show emission reductions in excess of 
    those resulting from the implementation of all RACM would conflict with 
    the CAA section 189(a)(1)(B)(ii) provision for demonstrating 
    impracticability.\34\
    ---------------------------------------------------------------------------
    
        \34\ EPA's approach is consistent with the rule, long 
    articulated by the Ninth Circuit, that ``language in one section of 
    the statute [is to be interpreted] consistently with the purposes of 
    the entire statute considered as a whole.'' Adams v. Howerton, 673 
    F.2d 1036, 1040 (9th Cir.), cert. denied, 458 U.S. 1111 (1982). See 
    also In re Arizona Appetito's Stores, Inc., 893 F.2d 216, 219 (9th 
    Cir. 1990) (courts to adopt interpretation that is harmonious with 
    the statute's scheme and general purposes).
    ---------------------------------------------------------------------------
    
        Finally, this entire discussion is somewhat academic in the case of 
    this FIP where the expeditious application of RACM not only results in 
    incremental emission reductions below pre-implementation levels, but 
    also in annual incremental reductions for both the 24-hour and annual 
    PM-10 standards. See section IV.D.1.
        Comment: In its 1996 comments (which the Center requested be 
    incorporated into its comments on the April 1, 1998 PM-10 FIP 
    proposal), ACLPI argues that EPA wrongly suggests that the Act's RFP 
    mandate disappears after the applicable attainment date has passed and 
    does not reappear until the state submits a new SIP to meet a new 
    attainment deadline. The Center asserts that under this view, a state 
    that is delinquent in meeting an attainment deadline can actually do 
    less to move toward attainment than an area that has yet to miss a 
    deadline. Given that the whole purpose of the RFP mandate is to assure 
    steady progress toward clean air, ACLPI argues that the purpose becomes 
    even more urgent when an area is continuing to violate standards and 
    that EPA's position is comparable to that rejected by the Court in 
    Delaney v. EPA, 898 F.2d 687 (9th Cir. 1990). In addition, ACLPI argues 
    that the approach proposed by EPA could not be more antithetical to the 
    language and purpose of the CAA and that under such an approach, EPA 
    could approve a SIP that will actually allow air quality to worsen 
    since the SIP need only slow the rate of emissions growth until the 
    attainment deadline but after the attainment deadline, the SIP need not 
    even slow the rate of emissions growth and emissions can grow at any 
    rate. ACLPI asserts that it is inconceivable that Congress intended a 
    result so contrary to the public health goals of the Act, or to the 
    plain meaning of the phrase, ``reasonable further progress.''
        Response: As stated above, the RFP mandate in the Act is intended 
    to ensure that nonattainment plans provide for reasonable progress 
    toward attainment by the applicable attainment date, as is clear from 
    the plain language of the RFP definition in section 171(1) of the Act. 
    As is apparent from that language, RFP, as the term is used in the CAA, 
    applies only in the period prior to the applicable attainment date and 
    does not continue in the period after that date.
        ACLPI purports to invest in the RFP mandate the solution to all 
    potential problems with implementation plans, from delinquent plans and 
    failure to actually attain the standards, to increasing emissions after 
    attainment dates have passed. This all-encompassing view of the RFP 
    mandate ignores the provisions of the Act that Congress added to 
    specifically address each of these situations: the section 179(a) 
    sanctions and section 110(c) federal plan requirements for addressing 
    delinquent or inadequate plans; the reclassification requirements of 
    sections 181(b)(2), 186(b)(2), and 188(b) (with their accompanying 
    requirements for new plans in sections 182, 187, and 189) and the 
    mandatory rate of progress requirements in sections 187(g) and 189(d) 
    for addressing continuing violations after the serious area attainment 
    date has passed; the requirement for contingency measures in section 
    172(c)(9) to assure additional emission reductions after an area fails 
    to attain but before a new plan is submitted to prevent emissions 
    growth; and the maintenance plan requirements in section 175(A) to 
    assure limits on emissions growth to prevent violations of the standard 
    in areas redesignated to attainment.\35\
    ---------------------------------------------------------------------------
    
        \35\ In light of the new statutory provisions in the 1990 Clean 
    Air Act Amendments, ACLPI's comment that EPA's position is 
    comparable to that rejected by the Ninth Circuit in Delaney is 
    inapposite. In that case, the Court was addressing the consequences 
    of a lapsed attainment deadline in the absence of any related 
    statutory provisions. In the 1990 Amendments, Congress provided 
    specific actions to be undertaken should such a lapse occur.
    ---------------------------------------------------------------------------
    
        Given that there are other specific CAA provisions that address the 
    hypothetical scenarios ACLPI envisions, there is no basis for invoking 
    the general RFP provision as a gap-filling, all-purpose remedy for 
    them. EPA's interpretation of the section 172(c)(2) RFP requirement as 
    set forth in the FIP is consistent with the statutory purpose of 
    achieving regular emission reductions as needed to assure attainment by 
    the applicable attainment date.
        Comment: ACLPI comments that the Act's reclassification scheme does 
    not support EPA's RFP approach because the purpose of reclassification 
    is to prompt adoption of more stringent controls and not an excuse to 
    bring progress to a stop.
        Response: EPA does not claim that the reclassification scheme 
    supports its RFP approach. Equally, the reclassification scheme does 
    not support ACLPI's proposition that the RFP requirement should apply 
    after an applicable attainment date. As noted previously, the plain 
    language of the RFP definition clearly indicates that RFP is only 
    required in the period before the applicable attainment date and not 
    after it has passed. As also noted previously, the CAA provision 
    intended to address progress between a lapsed attainment date and the 
    submittal of a revised nonattainment plan with its new RFP 
    demonstration is the contingency measures provision in section 
    172(c)(9).
        Comment: ACLPI claims that EPA's RFP analysis for the proposed FIP 
    is flawed in several other key respects. First, ACLPI asserts that it 
    is based on an emissions inventory that is not complete, current, and 
    accurate, as required by the Act. ACLPI states that the inventory 
    submitted by the state in connection with its 1991/1993 PM SIP revision 
    showed vehicular exhaust as constituting 36 percent of total PM-10 
    emissions (ADEQ, Final State Implementation Plan Revision, Revised 
    Chapter 9 (Feb. 1994) p. 9-34) and in contrast, the inventory relied on 
    in EPA's current RFP demonstration shows the same sources as amounting 
    to only 8 percent of the inventory and that EPA offers no rational 
    explanation for this glaring disparity. ACLPI notes that the State's 
    prior inventory was based on
    
    [[Page 41346]]
    
    actual speciated monitoring data from the Phoenix area and that EPA's 
    inventory appears to based on theoretical emission factors and 
    speculation.
        Response: EPA based its RFP analysis for the proposed FIP on the 
    1994 regional emission inventory prepared by MAG (see 1994 Regional PM-
    10 Emission Inventory for the Maricopa County Nonattainment Area, Draft 
    Final Report, MAG, May 1997) and additional inventory work prepared for 
    the regional PM-10 modeling (see Technical Support Document for the 
    Regional PM-10 Modeling in Support of the 1997 Serious Area PM-10 Plan 
    for Maricopa County Nonattainment Area, Draft, MAG, October 1997). 
    These inventories were prepared following the procedures in EPA 
    guidance, using either EPA emission factors or other appropriate 
    emission factors and Phoenix-specific activity data.
        It is not valid to conclude from the mere fact that this inventory 
    differs in its apportionment of sources from the inventory in the 1991/
    93 PM SIP that the regional 1994 inventory is inherently flawed. 
    Inventories prepared at different times will naturally vary because 
    improved methodologies are developed, new information about sources is 
    collected, control measures are implemented, and emission growth rates 
    vary across categories. All these factors tend to affect the percentage 
    presence of a source category from inventory to inventory. Because it 
    is the nature of inventories to change over time, EPA does not normally 
    require new inventories to be reconciled against previous ones and any 
    differences between them explained.
        The inventory in the 1991/93 PM-10 Plan referred to by ACLPI is the 
    regional inventory modified (``normalized'') to reflect a 1989-1990 
    source apportionment at three urban Phoenix monitors: Central Phoenix, 
    West Phoenix, and South Scottsdale. 36 This source 
    apportionment was performed using Chemical Mass Balance (CMB) modeling 
    and monitored speciated data. As work has been done to evaluate the 
    nature of the PM-10 problem in Phoenix, it has become increasing clear 
    that PM-10 exceedances in the Phoenix area often have highly localized 
    causes. In other words, the sources that contribute substantially to an 
    exceedance are often located close to the exceeding monitor. As a 
    result, any inventory that is developed based on the source 
    apportionment from a given monitor or small set of similar monitors is 
    only truly informative about the relative significance of sources 
    around those monitors rather than about the relative significance of 
    sources in a regional inventory.
    ---------------------------------------------------------------------------
    
        \36\ Strictly speaking, this normalized inventory is not an 
    emission inventory at all, but merely the percent source 
    contributions at a monitor multiplied by the total regional 
    inventory as calculated by emission factors and source activity 
    levels.
    ---------------------------------------------------------------------------
    
        Phoenix has a large number of fugitive dust sources such as 
    construction sites, vacant lots, unpaved roads, and agricultural 
    fields. Emissions from these sources need to be included in any 
    regional inventory. However, as noted in EPA's proposed action on the 
    microscale plan, fugitive dust PM-10 has more localized effects than 
    other criteria pollutants because it is emitted near ground level and 
    has relatively sharp spatial concentration gradients as dust settles 
    out with distance from the emitting source. See 62 FR 31025, 31030. 
    Consequently, it would be surprising to see a substantial contribution 
    from fugitive dust sources at urban monitors where there were 
    relatively few of these fugitive dust sources close by. The source 
    apportionment at such monitors is much more likely to be influenced by 
    local sources such as paved road dust and by fine particulate sources, 
    such as vehicle exhaust, which tend to remain suspended in ambient air 
    longer. This is exactly the source apportionment seen at the three 
    urban monitors used to generate the 1991/93 Plan's normalized 
    inventory. As a result, it is not surprising to see that the 1991/93 
    Plan's normalized inventory skewed toward paved road dust and vehicle 
    exhaust and away from fugitive dust. Basing the regional inventory on 
    the source apportionment at urban monitors, however, will underestimate 
    regional fugitive dust emissions. This underestimation is illustrated 
    in the 1991/93 Plan's normalized inventory in which fugitive dust 
    sources account for only 3 percent of the total regional PM-10 
    emissions.
        Source apportionment at a monitor is a necessary part of preparing 
    a PM-10 attainment demonstration because without a clear understanding 
    of the relative contributions of sources causing an exceedance, it is 
    impossible to know how controls will affect air quality.37 
    But in preparing a regional inventory for an area as large and as 
    diverse as Phoenix, with its many fugitive dust sources, source 
    apportionment based on just a few urban monitors is unlikely to result 
    in a regional inventory that correctly accounts for fugitive dust 
    emissions.
    ---------------------------------------------------------------------------
    
        \37\ In the 1991/93 Plan, the primary purpose of the normalized 
    inventory was to evaluate the effects of controls for the 
    impracticability demonstration. See 1991/93 Plan, p. 9-39.
    ---------------------------------------------------------------------------
    
        Comment: ACLPI also asserts that EPA failed to accurately address 
    growth in PM-10 emissions from vehicular exhaust. ACLPI notes that the 
    Agency's inventory shows on-road exhaust emissions of PM-10 steadily 
    decreasing from 1610 tpy in 1995 to 1037 tpy in 2001, but cites a MAG 
    conformity analysis that shows vehicle exhaust emissions of PM-10 
    increasing to 8,807 tpy (based on 24.13 tpd) by 2001. ACLPI argues that 
    increased emissions are consistent with projected increases in VMT and 
    with the lack of additional controls to limit motor vehicle emissions 
    of PM-10 and that EPA cannot justify reliance on an inventory that 
    shows decreasing motor vehicle emissions when this conflicts with 
    reality.
        Response: The MAG conformity analysis is performed using an out-of-
    date mobile source emissions model, the 1985 Particulate Model. See 
    Conformity Analysis, MAG Long Range Transportation Plan Summary and 
    1997 Update [and] MAG 1998-2002 Transportation Improvement Program, 
    MAG, November 1997, p. 1-21. MAG uses this model in its conformity 
    determinations in order to be consistent with the model used in the 
    State's 1991/93 moderate area plan. In 1994, EPA released the PART5 
    mobile source model for use in SIPs. As recommended by EPA guidance, 
    the base and projected exhaust emission inventories in the FIP were 
    developed using the PART5 model. See PM-10 Emission Inventory 
    Requirements, OAQPS, EPA (EPA-454/R-94-033), September 1994, p. 14. The 
    PART5 model changed the estimates of emissions from on-road motor 
    vehicles. The difference between the conformity and FIP inventories is 
    partly related to this change in emission models.
        The difference between the two inventories is also the result of 
    the use of the normalized inventory from the 1991/93 PM-10 Plan in the 
    conformity analysis. Again, MAG uses the normalized inventory to be 
    consistent with the submitted PM-10 SIP. See Conformity Analysis, p. 1-
    20. As discussed in the previous response, this normalized inventory 
    substantially increased the vehicle exhaust portion of the inventory 
    based on the source apportionment at three urban monitors. This 
    normalized inventory does not accurately reflect the contribution of 
    fugitive dust sources to the regional inventory and probably overstates 
    vehicle exhaust emissions.
        Because the motor vehicle exhaust inventory in the MAG conformity 
    analysis and the inventory in the FIP
    
    [[Page 41347]]
    
    were developed using substantially different methodologies and 
    assumptions, the inventories are not comparable. As a result, it cannot 
    be said that motor vehicle emissions are increasing from 1610 mtpy to 
    8,807 mtpy as ACLPI claims.38 The motor vehicle exhaust 
    inventory used in the FIP was based on the EPA's latest emission model 
    and regional estimates of emissions and, as a result, EPA believes that 
    it is the best inventory currently available.
    ---------------------------------------------------------------------------
    
        \38\ When projected 2001 emissions are estimated using the same 
    methodology as used in the 1991/93 plan, motor vehicle exhaust PM-10 
    emissions are projected to decline from 13,410 mtpy in 1989 (1991/93 
    Plan, p. 9-41, figure converted to mtpy from english tpy) to 8,807 
    mtpy in 2001 (Conformity Analysis, p. 6-3).
    ---------------------------------------------------------------------------
    
        Contrary to ACLPI's assertions, it is not surprising to see 
    decreases in tailpipe PM-10 emissions despite the increases in VMT and 
    the apparent lack of additional new control measures. This decline in 
    emissions despite the substantial increase in VMT is due primarily to 
    fleet turnover that brings cleaner cars into the fleet to replace 
    older, dirtier ones and implementation of control programs such as I/M 
    and clean fuel requirements. Decreasing motor vehicle emissions, in 
    fact, reflects the reality of almost three decades of successful 
    technological controls on motor vehicles.
        Comment: ACLPI states that the RFP demonstration does not show 
    annual emission reductions--it only purports to show reductions in the 
    year 2001.
        Response: As discussed above, EPA does not believe that annual 
    emission reductions are necessary to demonstrate RFP in areas 
    demonstrating the impracticability of attaining the PM-10 standard. 
    However, EPA has qualitatively shown that this FIP should result in 
    annual emission reductions from the 1998 promulgation until the 
    December 31, 2001 attainment date.
    
    E. Indian Reservations
    
        As discussed in EPA's proposed FIP, there are two Indian 
    reservations (the Salt River Pima-Maricopa Indian Community and the 
    Fort McDowell Mojave-Apache Indian Community) and a portion of a third 
    reservation (the Gila River Indian Community) in the Phoenix PM-10 
    nonattainment area. The FIP measures do not cover sources on these 
    reservations. See 63 FR 15920, 15941. EPA received comments from the 
    Salt River Pima-Maricopa Indian Community supporting EPA's proposal and 
    reiterating their willingness to work with EPA under the EPA's Tribal 
    Authority Rule which became effective on March 16, 1998.
    
    V. Administrative Requirements
    
    A. Executive Order (E.O.) 12866
    
        Under Executive Order 12866, 58 FR 51735 (October 4, 1993), the 
    Agency must determine whether the regulatory action is ``significant'' 
    and therefore subject to Office of Management and Budget (OMB) review 
    and the requirements of the Executive Order. The Order defines 
    ``significant regulatory action'' as one that is likely to result in a 
    rule that may:
    
        (1) have an annual effect on the economy of $100 million or more 
    or adversely affect in a material way the economy, a sector of the 
    economy, productivity, competition, jobs, the environment, public 
    health or safety, or State, local, or tribal governments or 
    communities;
        (2) create a serious inconsistency or otherwise interfere with 
    an action taken or planned by another agency;
        (3) materially alter the budgetary impact of entitlements, 
    grants, user fees, or loan programs or the rights and obligations of 
    recipients thereof; or
        (4) raise novel legal or policy issues arising out of legal 
    mandates, the President's priorities, or the principles set forth in 
    the Executive Order.
    
        Due to potential novel policy issues this action is considered a 
    significant regulatory action and therefore must be reviewed by OMB. 
    Changes made in response to OMB suggestions or recommendations will be 
    documented in the public record.
    
    B. Regulatory Flexibility Analysis
    
    1. Regulatory Flexibility Act Requirements
        Under the Regulatory Flexibility Act (RFA), 5 U.S.C. section 601 
    et. seq., EPA must prepare a regulatory flexibility analysis assessing 
    the impact of any proposed or final rule on small entities unless EPA 
    certifies that the rule will not have a significant economic impact on 
    a substantial number of small entities. 5 U.S.C. 603, 604 and 605(b). 
    Small entities include small businesses, small not-for-profit 
    enterprises, and government entities with jurisdiction over populations 
    of less than 50,000.
        For the purposes of this inquiry, as it applies to the two proposed 
    federal measures, the fugitive dust rule and the commitment for the 
    development and implementation of RACM for the agricultural sector, EPA 
    is assuming that the affected or potentially affected sources 
    constitute ``small entities'' as defined by the RFA.
        The final federal measures are intended to fill gaps in the Arizona 
    PM-10 SIP for the Phoenix nonattainment area. For non-agricultural 
    fugitive dust sources, while the County has adopted and EPA has 
    approved Rule 310 into the SIP, the County has not made a commitment to 
    provide adequate resources to ensure enforcement of the rule as it 
    applies to the unpaved road, unpaved parking lot and vacant lot source 
    categories.39 Further, application of Rule 310 to 
    agricultural sources including fields and aprons is affected by the 
    provision in section 102 (incorporating A.R.S. 49-504.4) that states 
    that the rule ``shall not be construed so as to prevent normal farm 
    cultural practices.'' Therefore, applicability of the rule to such 
    sources depends on what dust-generating operation is occurring at the 
    source. In other words, Rule 310 applies to some operations on 
    agricultural fields and aprons and not to others.
    ---------------------------------------------------------------------------
    
        \39\ The County typically only ensures compliance with Rule 310 
    for these sources on a complaint basis.
    ---------------------------------------------------------------------------
    
        2. RFA Analysis
        a. Federal Rule for Unpaved Roads, Unpaved Parking Lots, and Vacant 
    Lots. The starting point for EPA's analysis is Maricopa County's Rule 
    310. Regardless of the County's resources for enforcing the rule with 
    respect to nonagricultural fugitive dust sources, those sources are 
    legally responsible for complying with it. Failure to do so subjects 
    such sources to potential enforcement action by EPA, the State, County 
    and/or citizens. Thus, for the purpose of analyzing whether the 
    proposed FIP rule will have ``a significant economic impact,'' EPA 
    assumes that sources subject to the rule are complying with it. The 
    appropriate inquiry then is whether the terms of EPA's proposed rule 
    would impose a significant economic impact beyond that imposed by the 
    terms of Rule 310.
        Section 101 of Rule 310 states that the purpose of the rule is 
    ``[t]o limit the emission of particulate matter into the ambient air 
    from any property, operation or activity that may serve as an open 
    fugitive dust source.'' Further, the provisions of the rule ``apply to 
    any activity, equipment, operation and/or man-made or man-caused 
    condition or practice * * * capable of generating fugitive dust. * * 
    *'' Sections 305, 306, 309 and 312 of the rule contain the regulatory 
    requirements applicable to the following source categories: vehicle use 
    in open areas and vacant parcels, unpaved parking areas, vacant areas, 
    and roadways. These requirements differ to some extent depending on the 
    source category, but generally they mandate the implementation of RACM 
    before certain dust-producing activities can be undertaken. RACM is 
    defined in section 221 as ``[a] technique, practice, or procedure used 
    to prevent or
    
    [[Page 41348]]
    
    minimize the generation, emission, entrainment, suspension and/or 
    airborne transport of fugitive dust.'' As further defined in subsection 
    221.1, and as pertinent to this analysis, RACM include, but are not 
    limited to: curbing, paving, applying dust suppressants, and/or 
    physically stabilizing with vegetation and gravel.
        While subsection 211.1 does not specify which of the listed 
    measures are appropriate for what types of source categories, the 
    general definition of RACM in section 221 together with the list of 
    RACM measures in subsection 211.1 provide a basis for selecting 
    measures which are appropriate for a particular source to prevent or 
    minimize dust emissions, to the extent other provisions of Rule 310 do 
    not specify a particular RACM measure.
        EPA's final fugitive dust rule is intended to establish a RACM 
    requirement for unpaved parking lots, unpaved roads and vacant lots 
    that is substantively equivalent to that established for the same 
    sources by the Maricopa County rule. As noted above, the requirements 
    of the County rule differ to some extent depending on the source 
    category; EPA's proposed rule mirrors those differences. The primary 
    difference between the County rule and EPA's final rule is that the EPA 
    rule provides greater specificity and detail regarding which RACM are 
    appropriate for a particular source category for the purpose of 
    preventing or minimizing fugitive dust emissions.40
    ---------------------------------------------------------------------------
    
        \40\ EPA believes that it is reasonable and appropriate for its 
    rule to be more specific and detailed than the County rule. As a 
    result of the State's failure to commit sufficient enforcement 
    resources for its rule, EPA is having to fulfill the role of primary 
    enforcer of the RACM requirement for the sources described above. 
    EPA Region 9 will be responsible for fulfilling that role, and it is 
    located in San Francisco. Given the greater difficulties that Region 
    9 will inevitably face in enforcing the RACM requirement in Arizona, 
    it is reasonable for EPA to design a RACM rule that ensures EPA 
    enforcement of the rule will be practicable. As described above, the 
    County rule provides a general basis for determining which RACM 
    should be applied to which source categories. But its lack of 
    specificity makes it more likely that the agency enforcing the rule 
    will routinely be called upon to address which RACM should be 
    applied to which source categories. By addressing this issue in the 
    FIP rule itself, EPA hopes to reduce the extent to which sources and 
    others may have to consult with the Agency to determine which RACM 
    are appropriate for a particular source or source category.
    ---------------------------------------------------------------------------
    
        In providing further specificity and detail, EPA's rule does not 
    change the nature of the RACM requirement already applicable to sources 
    covered by County Rule 310. The RACM required to be applied in the 
    final FIP rule are the very measures listed in subsection 211.1 of Rule 
    310. Beyond that, the RACM specified in the final rule for any 
    particular source category are the appropriate RACM for that source 
    category. What constitutes RACM for the source categories covered by 
    the final FIP rule is relatively straightforward in light of the 
    differences among the source categories, the low technology nature of 
    the potential RACM and other available information. EPA therefore 
    believes that its further specification of the RACM requirements does 
    not change the nature of the RACM requirements already applicable under 
    Maricopa County Rule 310 which is federally enforceable as an approved 
    element of the Arizona SIP.
        The only other notable difference between the County rule and the 
    final FIP rule that is relevant to this analysis is paragraph (f) of 
    the proposed FIP rule. Rule 310 contains a recordkeeping requirement 
    for permitted dust-generating activities, but does not contain such a 
    requirement for unpermitted activities, including unpaved parking lots, 
    unpaved roads and vacant lots. Therefore, paragraph (f) of the proposed 
    FIP rule includes a requirement that owners/operators subject to the 
    rule maintain records demonstrating appropriate application of RACM. 
    EPA has determined that the recordkeeping requirements for the source 
    categories covered in the FIP rule will not have a significant economic 
    impact. In many cases, the owner/operator need only retain a purchase 
    receipt or contractor work order for the control(s) implemented. When 
    chemical stabilization is applied as a control measure, more specific 
    information regarding the product being used is required. However, this 
    information (e.g., type of product, label instructions) is readily 
    available from vendors or easily determined at the time of application. 
    EPA expects that the information the final FIP rule requires sources to 
    keep will be retained by source owners or operators in any event in the 
    normal course of business (e.g., for tax and accounting purposes).
        EPA's final fugitive dust rule incorporates a number of changes 
    made in response to the public comments that EPA received on the FIP 
    proposal. Those changes are summarized and discussed in section IV.B.2. 
    above and in the TSD. The net result of the substantive changes is to 
    provide sources with greater flexibility than provided in the FIP 
    proposal and Rule 310. For example, the final FIP rule includes an 
    increase from 0.10 acre to 0.50 acre in the de minimis disturbed 
    surface area level for vacant lots; an increase from 150 to 250 ADT in 
    the exemption level for unpaved roads; a new de minimis use level for 
    unpaved parking lots; and the elimination of the DCP requirement for 
    weed abatement. As a result of these and other changes, the 
    requirements of the final FIP rule are effectively less stringent than 
    both the rule as proposed and Rule 310. Thus the costs of compliance 
    with the FIP rule are expected to be less than the proposed FIP rule 
    and Rule 310.
        As the above discussion of the RACM requirements of the two rules 
    makes clear, even though the final FIP rule differs from Rule 310 in 
    that it is more specific and detailed, there should be no additional 
    burden on regulated sources because they are already legally required 
    to apply RACM under the County rule, and the RACM required by the final 
    FIP rule are substantively identical to that required under Rule 
    310.41
    ---------------------------------------------------------------------------
    
        \41\ Since, by its terms, the requirements of Rule 310 are so 
    broad, the general effect of the greater specificity and detail is 
    that EPA's FIP rule, in its entirety, is somewhat narrower in scope 
    than the County's rule as it relates to unpaved roads, unpaved 
    parking lots and vacant lots. For example, section 312 of Rule 310 
    regulates users of unpaved roads, while EPA's rule regulates only 
    owners and operators; and Rule 310 does not exempt any unpaved 
    roads, while EPA's rule includes a low ADT exemption.
    ---------------------------------------------------------------------------
    
        Moreover, EPA believes that the additional recordkeeping 
    requirement in the FIP rule will not have a significant economic impact 
    on the affected sources. As stated above, and in section V.A.7.b. of 
    the proposed rulemaking, the information required to be retained is 
    minimal and is therefore not expected to entail any appreciable 
    economic impact.
        b. Federal Commitment for Agriculture. EPA's final measure to 
    control fugitive dust from agricultural fields and aprons consists of 
    an enforceable commitment to propose and finalize adoption of RACM for 
    those sources in September 1999 and April 2000, respectively. Prior to 
    this formal rulemaking, EPA intends to convene a stakeholder process to 
    develop the specific RACM that will ultimately be proposed for 
    adoption. As discussed in detail in section V.A.7.a. of the proposed 
    rulemaking, EPA intends the RACM to take the form of BMPs. During the 
    BMP development process, EPA will investigate a myriad of factors, 
    including the appropriate coverage of potential BMPs, regional climate, 
    soil and crop types, and growing seasons. Because this aspect of 
    today's action neither imposes specific regulatory requirements, nor 
    obligates EPA to propose requirements necessarily applicable to small 
    entities, it will not, by itself, have a significant economic impact on 
    a substantial number of small entities. When EPA proposes specific RACM 
    in the September 1999
    
    [[Page 41349]]
    
    rulemaking, it will either undertake a RFA analysis or certify the 
    proposed rule, as appropriate.
        c. Certification. EPA has determined that it is not necessary to 
    prepare a regulatory flexibility analysis in connection with this final 
    rule. EPA has also determined that this rule will not have a 
    significant economic impact on a substantial number of small entities.
    
    C. Unfunded Mandates Reform Act (UMRA)
    
        Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L. 
    104-4, establishes requirements for Federal agencies to assess the 
    effects of their regulatory actions on State, local, and tribal 
    governments and the private sector.
        Under section 202 of the UMRA, EPA generally must prepare a written 
    statement, including a cost-benefit analysis, when EPA promulgates 
    ``any general notice of proposed rulemaking that is likely to result in 
    promulgation of any rule that includes any Federal mandate that may 
    result in the expenditures by State, local, and tribal governments, in 
    the aggregate, or by the private sector, of $100 million or more'' in 
    any one year. A ``Federal mandate'' is defined, under section 101 of 
    UMRA, as a provision that ``would impose an enforceable duty'' upon the 
    private sector or State, local, or tribal governments'', with certain 
    exceptions not here relevant.
        Under section 203 of UMRA, EPA must develop a small government 
    agency plan before EPA ``establish[es] any regulatory requirements that 
    might significantly or uniquely affect small governments'.
        Under section 204 of UMRA, EPA is required to develop a process to 
    facilitate input by elected officers of State, local, and tribal 
    governments for EPA's ``regulatory proposals'' that contain significant 
    Federal intergovernmental mandates.
        Under section 205 of UMRA, before EPA promulgates ``any rule for 
    which a written statement is required under [UMRA section] 202'', EPA 
    must identify and consider a reasonable number of regulatory 
    alternatives and either adopt the least costly, most cost-effective or 
    least burdensome alternative that achieves the objectives of the rule, 
    or explain why a different alternative was selected.
        As explained above, while the final federal fugitive dust rule may 
    impose an enforceable duty on State or local governments, the resulting 
    expenditures by those entities are expected to be minimal. Tribal 
    governments are excluded from the coverage of this rule. In addition, 
    there will be no current enforceable duties imposed on, or expenditures 
    by, State, local or tribal governments or the private sector as a 
    result of the federal commitment regarding the agricultural sector. 
    Therefore, expenditures by State, local and tribal governments, in the 
    aggregate, or by the private sector, will be well under $100 million 
    per year as a result of today's federal measures. Consequently, 
    sections 202, 204 and 205 of UMRA do not apply to today's final action. 
    Therefore, EPA is not required and has not taken any actions to meet 
    the requirements of these sections of UMRA.
        With respect to section 203 of UMRA, EPA has concluded that its 
    final actions include no regulatory requirements that will 
    significantly or uniquely affect small governments. As discussed in 
    detail in IV.B.2. above, EPA believes that the RACM requirements of the 
    final FIP rule for vacant lots, unpaved parking lots and unpaved roads 
    are already legally required under Maricopa County Rule 310 which is 
    federally enforceable as an approved element of the Arizona SIP. 
    Moreover, the requirements of EPA's final FIP rule, while more specific 
    and detailed, are substantively identical to those required under Rule 
    310. Therefore, there should be no additional burden on regulated 
    sources, including small governments. With respect to EPA's enforceable 
    commitment for the agricultural sector, such a commitment neither 
    imposes specific regulatory requirements, nor obligates EPA to propose 
    requirements necessarily applicable to small entities. Thus, neither 
    EPA's fugitive dust rule nor its commitment for the agricultural sector 
    will significantly or uniquely affect small governments. Consequently, 
    EPA has not developed a small government plan. Nevertheless, prior to 
    EPA's proposed action, the Agency held numerous meetings with 
    potentially affected representatives of the State and local governments 
    to discuss the requirements of, and receive input regarding, the 
    proposed federal fugitive dust rule and commitment for the agricultural 
    sector.
    
    D. Paperwork Reduction Act
    
        The information collection requirements in this final rule have 
    been submitted for approval to the Office of Management and Budget 
    (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An 
    Information Collection Request (ICR) document has been prepared by EPA 
    (ICR No. 1855.02) and a copy may be obtained from Sandy Farmer, OPPE 
    Regulatory Information Division; U.S. Environmental Protection Agency 
    (2137); 401 M St., S.W.; Washington, DC 20460 or by calling (202) 260-
    2740.
        EPA's final FIP rule for unpaved parking lots, unpaved roads and 
    vacant lots includes recordkeeping and reporting requirements which 
    will help ensure source compliance with the rule's control 
    requirements. In general, EPA believes the recordkeeping and reporting 
    requirements are the minimal requirements necessary to demonstrate 
    compliance. The requirements include:
    
    --Owners/operators of unpaved roads must keep a record which indicates 
    the date and type of control (i.e., paving, stabilizing, or applying 
    gravel) applied to the road.
    --Owners/operators of unpaved parking lots must keep a record which 
    indicates the date and type of control (i.e., paving, stabilizing, 
    applying gravel, or temporary stabilization for lots used less than 35 
    days per year) applied to the unpaved parking lot.
    --Owners/operators of vacant lots with disturbed surfaces must keep a 
    record which indicates the date and type of control (i.e., applying 
    ground cover vegetation, stabilizing, restoring to natural undisturbed 
    state, or applying gravel) applied to the vacant lot.
    --Owners/operators of vacant lots with motor vehicle disturbances must 
    keep a record which indicates the date and type of control applied to 
    the vacant lot.
    --Agency surveys will be conducted by the EPA or other appropriate 
    agency to determine the effectiveness of the rule in the Phoenix area.
    
        The estimated recordkeeping and reporting burden for the proposed 
    FIP rule was about 9716 hours and the estimated labor cost was about 
    $173,632. However, since the final FIP rule no longer requires the 
    submittal of dust control plans for weed abatement activity, the 
    estimated recordkeeping and reporting burden for the final FIP rule is 
    about 5297 hours and the estimated labor cost is about $93,455. No 
    capital/start-up costs or operational and maintenance costs are 
    anticipated. Burden means the total time, effort, or financial 
    resources expended by persons to generate, maintain, retain, or 
    disclose or provide information to or for a Federal agency. This 
    includes the time needed to review instructions; develop, acquire, 
    install, and utilize technology and systems for the purposes of 
    collecting, validating, and verifying information, processing and 
    maintaining information, and disclosing and providing information; 
    adjust the existing ways to comply with any previously applicable 
    instructions and
    
    [[Page 41350]]
    
    requirements; train personnel to be able to respond to a collection of 
    information; search data sources; complete and review the collection of 
    information; and transmit or otherwise disclose the information.
        An agency may not conduct or sponsor, and a person is not required 
    to respond to a collection of information unless it displays a 
    currently valid OMB control number. The OMB control number for EPA's 
    regulations is listed in 40 CFR Part 9 and 48 CFR Chapter 15.
        Send comments on the Agency's need for this information, the 
    accuracy of the provided burden estimates, and any suggested methods 
    for minimizing respondent burden, including through the use of 
    automated collection techniques, to the Director, OPPE Regulatory 
    Information Division; U.S. Environmental Protection Agency (2137); 401 
    M St., S.W.; Washington, DC 20460; and to the Office of Information and 
    Regulatory Affairs, Office of Management and Budget, 725 17th St., N.W. 
    Washington, DC 20503, marked ``Attention: Desk Officer for EPA.'' 
    Comments are requested by September 2, 1998. Include the ICR number in 
    any correspondence.
    
    E. E.O. 13045: Protection of Children From Environmental Health Risks 
    and Safety Risks
    
        Executive Order 13045, entitled ``Protection of Children from 
    Environmental Health Risks and Safety Risks (62 FR 19885 (April 23, 
    1997)), applies to any rule that EPA determines (1) ``economically 
    significant'' as defined under E.O. 12866 and (2) the environmental 
    health or safety risk addressed by the rule has a disproportionate 
    effect on children. If the regulatory action meets both criteria, the 
    Agency must evaluate the environmental health or safety effects of the 
    planned rule on children; and explain why the planned regulation is 
    preferable to other potentially effective and reasonably feasible 
    alternatives considered by the Agency.
        Today's final action promulgating a moderate area PM-10 federal 
    implementation plan for the Phoenix area is not subject to E.O. 13045 
    because it is not an economically significant regulatory action as 
    defined by E.O. and because it does not involve decisions on 
    environmental health risks or safety risks that may disproportionately 
    affect children.
    
    F. Submission to Congress and the General Accounting Office
    
        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. This rule is not a 
    ``major'' rule as defined by 5 U.S.C. 804(2).
    
    G. 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 October 2, 1998. Filing a 
    petition for reconsideration by the Administrator of this final rule 
    does not affect the finality of this rule for the purposes of judicial 
    review nor does it extend the time within which a petition for judicial 
    review may be filed, and shall not postpone the effectiveness of such 
    rule or action. This action may not be challenged later in proceedings 
    to enforce its requirements. (See section 307(b)(2)).
    
    List of Subjects in 40 CFR Part 52
    
        Environmental protection, Air pollution control, Intergovernmental 
    relations, Particulate matter, Reporting and recordkeeping 
    requirements.
    
        Dated: July 17, 1998.
    Carol M. Browner,
    Administrator.
    
        For the reasons set forth in the preamble, part 52, chapter I, 
    title 40 of the Code of Federal Regulations is amended as follows:
    
    PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
    
        1. The authority citation for part 52 continues to read as follows:
    
        Authority: 42 U.S.C. 7401 et seq.
    
    Subpart D--Arizona
    
        2. Section 52.123 is amended by adding paragraph (h) to read as 
    follows:
    
    
    Sec. 52.123  Approval Status.
    
    * * * * *
        (h) Pursuant to the federal planning authority in section 110(c) of 
    the Clean Air Act, the Administrator finds that the applicable 
    implementation plan for the Maricopa County PM-10 nonattainment area 
    provides for the implementation of reasonably available control 
    measures as required by section 189(a)(1)(C) and demonstrates 
    attainment by the applicable attainment date as required and allowed by 
    sections 172(c)(2) and 189(a)(1)(B).
        3. Section 52.124 is amended by adding paragraph (c) to read as 
    follows:
    
    
    Sec. 52.124  Part D disapproval.
    
    * * * * *
        (c) The Administrator disapproves the attainment demonstration for 
    the annual PM-10 national ambient air quality standard and the 
    provisions for implementation of reasonably available control measures 
    for the annual PM-10 national ambient air quality standard in the MAG 
    1991 Particulate Plan for PM-10 for the Maricopa County Area and 1993 
    Revisions (July 1993) submitted by the Arizona Department of 
    Environmental Quality on August 11, 1993 as revised by the submittal of 
    a Revised Chapter 9 on March 3, 1994 because they do not meet the 
    requirements of sections 189(a)(1)(B) and 189(a)(1)(C) of Part D of 
    title I of the Clean Air Act.
        4. Subpart D is amended by adding Secs. 52.127 and 52.128 to read 
    as follows:
    
    
    Sec. 52.127  Commitment to promulgate and implement reasonably 
    available control measures for the agricultural fields and aprons.
    
        The Administrator shall promulgate and implement reasonably 
    available control measures (RACM) pursuant to section 189(a)(1)(C) of 
    the Clean Air Act for agricultural fields and aprons in the Maricopa 
    County (Phoenix) PM-10 nonattainment area according to the following 
    schedule: by no later than September, 1999, the Administrator shall 
    sign a Notice of Proposed Rulemaking; by no later than April, 2000, the 
    Administrator shall sign a Notice of Final Rulemaking; and by no later 
    than June, 2000, EPA shall begin implementing the final RACM.
    
    
    Sec. 52.128  Rule for unpaved parking lots, unpaved roads and vacant 
    lots.
    
        (a) General. (1) Purpose. The purpose of this section is to limit 
    the emissions of particulate matter into the ambient air from human 
    activity on unpaved parking lots, unpaved roads and vacant lots.
        (2) Applicability. The provisions of this section shall apply to 
    owners/operators of unpaved roads, unpaved parking lots and vacant lots 
    and responsible parties for weed abatement on vacant lots in the 
    Phoenix PM-10 nonattainment area. This section does not apply to 
    unpaved roads, unpaved parking lots or vacant lots located on an 
    industrial facility, construction, or earth-moving site that has an 
    approved
    
    [[Page 41351]]
    
    permit issued by Maricopa County Environmental Services Division under 
    Rule 200, Section 305, Rule 210 or Rule 220 containing a Dust Control 
    Plan approved under Rule 310 covering all unpaved parking lots, unpaved 
    roads and vacant lots. This section does not apply to the two Indian 
    Reservations (the Salt River Pima-Maricopa Indian Community and the 
    Fort McDowell Mojave-Apache Indian Community) and a portion of a third 
    reservation (the Gila River Indian Community) in the Phoenix PM-10 
    nonattainment area. Nothing in this definition shall preclude 
    applicability of this section to vacant lots with disturbed surface 
    areas due to construction, earth-moving, weed abatement or other dust 
    generating operations which have been terminated for over eight months.
        (3) The test methods described in Appendix A of this section shall 
    be used when testing is necessary to determine whether a surface has 
    been stabilized as defined in paragraph (b)(16) of this section.
        (b) Definitions. (1) Average daily trips (ADT)--the average number 
    of vehicles that cross a given surface during a specified 24-hour time 
    period as determined by the Institute of Transportation Engineers Trip 
    Generation Report (6th edition, 1997) or tube counts.
        (2) Chemical/organic stabilizer--Any non-toxic chemical or organic 
    dust suppressant other than water which meets any specifications, 
    criteria, or tests required by any federal, state, or local water 
    agency and is not prohibited for use by any applicable law, rule or 
    regulation.
        (3) Disturbed surface area--Any portion of the earth's surface, or 
    materials placed thereon, which has been physically moved, uncovered, 
    destabilized, or otherwise modified from its undisturbed natural 
    condition, thereby increasing the potential for emission of fugitive 
    dust.
        (4) Dust suppressants--Water, hygroscopic materials, solution of 
    water and chemical surfactant, foam, or non-toxic chemical/ organic 
    stabilizers not prohibited for use by any applicable law, rule or 
    regulation, as a treatment material to reduce fugitive dust emissions.
        (5) EPA--United States Environmental Protection Agency, Region IX, 
    75 Hawthorne Street, San Francisco, California 94105.
        (6) Fugitive dust--the particulate matter entrained in the ambient 
    air which is caused from man-made and natural activities such as, but 
    not limited to, movement of soil, vehicles, equipment, blasting, and 
    wind. This excludes particulate matter emitted directly from the 
    exhaust of motor vehicles and other internal combustion engines, from 
    portable brazing, soldering, or welding equipment, and from 
    piledrivers.
        (7) Lot--A parcel of land identified on a final or parcel map 
    recorded in the office of the Maricopa County recorder with a separate 
    and distinct number or letter.
        (8) Low use unpaved parking lot--A lot on which vehicles are parked 
    no more than thirty-five (35) days a year, excluding days where the 
    exemption in paragraph (c)(2) of this section applies.
        (9) Motor vehicle--A self-propelled vehicle for use on the public 
    roads and highways of the State of Arizona and required to be 
    registered under the Arizona State Uniform Motor Vehicle Act, including 
    any non-motorized attachments, such as, but not limited to, trailers or 
    other conveyances which are connected to or propelled by the actual 
    motorized portion of the vehicle.
        (10) Off-road motor vehicle--any wheeled vehicle which is used off 
    paved roadways and includes but is not limited to the following:
        (i) Any motor cycle or motor-driven cycle;
        (ii) Any motor vehicle commonly referred to as a sand buggy, dune 
    buggy, or all terrain vehicle.
        (11) Owner/operator--any person who owns, leases, operates, 
    controls, maintains or supervises a fugitive dust source subject to the 
    requirements of this section.
        (12) Paving--Applying asphalt, recycled asphalt, concrete, or 
    asphaltic concrete to a roadway surface.
        (13) Phoenix PM-10 nonattainment area--such area as defined in 40 
    CFR 81.303, excluding Apache Junction.
        (14) PM-10--Particulate matter with an aerodynamic diameter less 
    than or equal to a nominal 10 micrometers as measured by reference or 
    equivalent methods that meet the requirements specified for PM-10 in 40 
    CFR Part 50, Appendix J.
        (15) Reasonably available control measures (RACM)--Techniques used 
    to prevent the emission and/or airborne transport of fugitive dust and 
    dirt.
        (16) Stabilized surface--(i) Any unpaved road or unpaved parking 
    lot surface in which any fugitive dust plume emanating from vehicular 
    movement does not exceed 20 percent opacity as determined in section I. 
    of Appendix A of this section.
        (ii) Any vacant lot surface with:
        (A) A visible crust which is greater than 0.6 centimeters (cm) 
    thick and is not easily crumbled between the fingers as determined in 
    section II.1. of Appendix A of this section;
        (B) A threshold friction velocity (TFV), corrected for non-erodible 
    elements, of 100 cm/second or higher as determined in section II.2 of 
    Appendix A of this section;
        (C) Flat vegetation cover equal to at least 50 percent as 
    determined in section II. 3. of Appendix A of this section;
        (D) Standing vegetation cover equal to or greater than 30 percent 
    as determined in section II. 4. of Appendix A of this section; or
        (E) Standing vegetation cover equal to or greater than 10 percent 
    as determined in section II.4. of Appendix A of this section where 
    threshold friction velocity, corrected for non-erodible elements, as 
    determined in section II. 2 of Appendix A of this section is equal to 
    or greater than 43 cm/second.
        (17) Unpaved Parking Lot--A privately or publicly owned or operated 
    area utilized for parking vehicles that is not paved and is not a Low 
    Use Unpaved Parking Lot.
        (18) Unpaved Road--Any road, equipment path, or driveway that is 
    not paved which is open to public access and owned/operated by any 
    federal, state, county, municipal or other governmental or quasi-
    governmental agencies.
        (19) Urban or Suburban Open Area--An unsubdivided or undeveloped 
    tract of land adjoining a residential, industrial or commercial area, 
    located on public or private property.
        (20) Vacant Lot--A subdivided residential, industrial, 
    institutional, governmental or commercial lot which contains no 
    approved or permitted buildings or structures of a temporary or 
    permanent nature.
        (c) Exemptions. The following requirements in paragraph (d) of this 
    section do not apply:
        (1) In paragraphs (d)(1) and (d)(3)(iii) of this section: Any 
    unpaved parking lot or vacant lot 5,000 square feet or less.
        (2) In paragraph (d)(1) of this section: Any unpaved parking lot on 
    any day in which ten (10) or fewer vehicles enter.
        (3) In paragraphs (d)(3)(i) and (d)(3)(ii) of this section: Any 
    vacant lot with less than 0.50 acre (21,780 square feet) of disturbed 
    surface area(s).
        (4) In paragraph (d) of this section: Non-routine or emergency 
    maintenance of flood control channels and water retention basins.
        (5) In paragraph (d) of this section: Vehicle test and development 
    facilities and operations when dust is required to test and validate 
    design integrity, product quality and/or commercial acceptance. Such 
    facilities and
    
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    operations shall be exempted from the provisions of this section only 
    if such testing is not feasible within enclosed facilities.
        (6) In paragraph (d)(3)(i) of this section: Weed abatement 
    operations performed on any vacant lot or property under the order of a 
    governing agency for the control of a potential fire hazard or 
    otherwise unhealthy condition provided that mowing, cutting, or another 
    similar process is used to maintain weed stubble at least three (3) 
    inches above the soil surface. This includes the application of 
    herbicides provided that the clean-up of any debris does not disturb 
    the soil surface.
        (7) In paragraph (d)(3)(i) of this section: Weed abatement 
    operations that receive an approved Earth Moving permit under Maricopa 
    County Rule 200, Section 305 (adopted 11/15/93).
        (d) Requirements. (1) Unpaved parking lots.
        (i) Any owners/operators of an unpaved parking lot shall implement 
    one of the following RACM on any surface area(s) of the lot on which 
    vehicles enter and park.
        (A) Pave; or
        (B) Apply chemical/organic stabilizers in sufficient concentration 
    and frequency to maintain a stabilized surface; or
        (C) Apply and maintain surface gravel uniformly such that the 
    surface is stabilized.
        (ii) Any owners/operators of a Low Use Unpaved Parking Lot as 
    defined in paragraph (b)(8) of this section shall implement one of the 
    RACM under paragraph (d)(1)(i) of this section on any day(s) in which 
    over 100 vehicles enter the lot, such that the surface area(s) on which 
    vehicles enter and park is/are stabilized throughout the duration of 
    time that vehicles are parked.
        (2) Unpaved roads. Any owners/operators of existing unpaved roads 
    with ADT volumes of 250 vehicles or greater shall implement one of the 
    following RACM along the entire surface of the road or road segment 
    that is located within the Phoenix non-attainment area by June 10, 
    2000:
        (i) Pave; or
        (ii) Apply chemical/organic stabilizers in sufficient concentration 
    and frequency to maintain a stabilized surface; or
        (iii) Apply and maintain surface gravel uniformly such that the 
    surface is stabilized.
        (3) Vacant lots. The following provisions shall be implemented as 
    applicable.
        (i) Weed abatement. No person shall remove vegetation from any 
    vacant lot by blading, disking, plowing under or any other means 
    without implementing all of the following RACM to prevent or minimize 
    fugitive dust.
        (A) Apply a dust suppressant(s) to the total surface area subject 
    to disturbance immediately prior to or during the weed abatement.
        (B) Prevent or eliminate material track-out onto paved surfaces and 
    access points adjoining paved surfaces.
        (C) Apply a dust suppressant(s), gravel, compaction or alternative 
    control measure immediately following weed abatement to the entire 
    disturbed surface area such that the surface is stabilized.
        (ii) Disturbed surfaces. Any owners/operators of an urban or 
    suburban open area vacant lot of which any portion has a disturbed 
    surface area(s) that remain(s) unoccupied, unused, vacant or 
    undeveloped for more than fifteen (15) calendar days shall implement 
    one of the following RACM within sixty (60) calendar days following the 
    disturbance.
        (A) Establish ground cover vegetation on all disturbed surface 
    areas in sufficient quantity to maintain a stabilized surface; or
        (B) Apply a dust suppressant(s) to all disturbed surface areas in 
    sufficient quantity and frequency to maintain a stabilized surface; or
        (C) Restore to a natural state, i.e. as existing in or produced by 
    nature without cultivation or artificial influence, such that all 
    disturbed surface areas are stabilized; or
        (D) Apply and maintain surface gravel uniformly such that all 
    disturbed surface areas are stabilized.
        (iii) Motor vehicle disturbances. Any owners/operators of an urban 
    or suburban open area vacant lot of which any portion has a disturbed 
    surface area due to motor vehicle or off-road motor vehicle use or 
    parking, notwithstanding weed abatement operations or use or parking by 
    the owner(s), shall implement one of the following RACM within 60 
    calendar days following the initial determination of disturbance.
        (A) Prevent motor vehicle and off-road motor vehicle trespass/
    parking by applying fencing, shrubs, trees, barriers or other effective 
    measures; or
        (B) Apply and maintain surface gravel or chemical/organic 
    stabilizer uniformly such that all disturbed surface areas are 
    stabilized.
        (4) Alternative control measures. For sources subject to 
    requirements in paragraphs (d)(1), (d)(2), (d)(3)(ii) and (d)(3)(iii) 
    of this section: As an alternative to compliance, owners/operators may 
    use any other alternative control measures approved by EPA pursuant to 
    paragraphs (e)(1) and (e)(2) of this section as equivalent to the 
    methods specified in paragraph (d) of this section.
        (5) Implementation date of RACM. All of the requirements in 
    paragraph (d) of this section shall be effective eight (8) months from 
    September 2, 1998. For requirements in paragraph (d)(3)(ii) and 
    (d)(3)(iii) of this section, RACM shall be implemented within eight (8) 
    months from September 2, 1998, or within 60 calendar days following the 
    disturbance, whichever is later.
        (e) Administrative requirements. (1) Proposed alternative control 
    measures for sources subject to paragraph (d)(2) of this section must 
    be submitted to EPA for approval within one year from September 2, 
    1998. Proposed alternative control measures for sources subject to 
    paragraph (d)(1) of this section must be submitted to EPA for approval 
    within 90 calendar days prior to the required RACM implementation date 
    as specified in this section. Proposed alternative control measures for 
    sources subject to paragraphs (d)(3)(ii) and (d)(3)(iii) of this 
    section must be submitted to EPA for approval within 90 calendar days 
    prior to the required RACM implementation date as specified in this 
    section or within 60 calendar days following the initial determination 
    of disturbance, whichever is later.
        (2) Upon receipt of an alternative control measure, EPA shall 
    provide written notice within 30 calendar days to the owner/operator 
    approving or disapproving the alternative control measure. Should EPA 
    not provide written notice of approval or disapproval within the above 
    deadline, the owner/operator shall assume that the alternative control 
    measure is approved. Upon receiving notice of EPA approval, the owner/
    operator shall implement the alternative control measure according to 
    the timeframe established in this section unless otherwise specified by 
    EPA. Upon receiving notice of EPA disapproval of the alternative 
    control measure, the owner/operator shall implement RACM according to 
    the specifications and timeframe established in this section. For 
    sources submitting an alternative control measure under paragraphs 
    (d)(3)(ii) or (d)(3)(iii) of this section, owners/operators shall 
    implement the alternative control measure if approved by EPA within 60 
    calendar days upon receiving written notice, or, upon disapproval of 
    the alternative control measure, implement RACM as specified in this 
    section within 60 calendar days upon receiving written notice.
        (f) Monitoring and records. (1) Any owners/operators that are 
    subject to the provisions of this section shall compile and retain 
    records that provide evidence
    
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    of control measure application, indicating the type of treatment or 
    measure, extent of coverage and date applied. For control measures 
    involving chemical/organic stabilization, records shall also indicate 
    the type of product applied, vendor name, label instructions for 
    approved usage, and the method, frequency, concentration and quantity 
    of application.
        (2) Copies of control measure records and dust control plans along 
    with supporting documentation shall be retained for at least three 
    years.
        (3) Agency surveys. (i) EPA or other appropriate entity shall 
    conduct a survey of the number and size (or length) of unpaved roads, 
    unpaved parking lots, and vacant lots subject to the provisions of this 
    rule located within the Phoenix PM-10 nonattainment area beginning no 
    later than 365 days from September 2, 1998.
        (ii) EPA or other appropriate entity shall conduct a survey at 
    least every three years within the Phoenix PM-10 nonattainment area 
    beginning no later than 365 days from September 2, 1998, which 
    includes:
        (A) An estimate of the percentage of unpaved roads, unpaved parking 
    lots, and vacant lots subject to this rule to which RACM as required in 
    this section have been applied; and
        (B) A description of the most frequently applied RACM and estimates 
    of their control effectiveness.
    
    Appendix A to Sec. 52.128 Test Methods To Determine Whether a Surface 
    Is Stabilized
    
    I. Unpaved Roads and Unpaved Parking Lots
    
        Conduct opacity observations in accordance with Reference Method 
    9 (40 CFR Part 60, appendix A) and Methods 203A and 203C of this 
    appendix, with opacity readings taken at five second observation 
    intervals and two consecutive readings per plume beginning with the 
    first reading at zero seconds, in accordance with Method 203C, 
    sections 2.3.2. and 2.4.2 of this appendix. Conduct visible opacity 
    tests only on dry unpaved surfaces (i.e. when the surface is not 
    damp to the touch) and on days when average wind speeds do not 
    exceed 15 miles per hour (mph).
    
    Method 203A--Visual Determination of Opacity of Emissions From 
    Stationary Sources for Time-Arranged Regulations
    
        Method 203A is virtually identical to EPA's Method 9 of 40 CFR 
    part 60, appendix A except for the data-reduction procedures, which 
    provide for averaging times other than 6 minutes. That is, using 
    Method 203A with a 6-minute averaging time would be the same as 
    following EPA Method 9. Additionally, Method 203A provides 
    procedures for fugitive dust applications. The certification 
    procedures provided in section 3 are virtually identical to Method 9 
    and are provided here, in full, for clarity and convenience.
    
    1. Applicability and Principle
    
        1.1  Applicability. This method is applicable for the 
    determination of the opacity of emissions from sources of visible 
    emissions for time-averaged regulations. A time-averaged regulation 
    is any regulation that requires averaging visible emission data to 
    determine the opacity of visible emissions over a specific time 
    period.
        1.2  Principle. The opacity of emissions from sources of visible 
    emissions is determined visually by an observer qualified according 
    to the procedures of section 3.
    
    2. Procedures
    
        An observer qualified in accordance with section 3 of this 
    method shall use the following procedures for visually determining 
    the opacity of emissions.
        2.1  Procedures for Emissions from Stationary Sources. These 
    procedures are not applicable to this section.
        2.2  Procedures for Fugitive Process Dust Emissions. These 
    procedures are applicable for the determination of the opacity of 
    fugitive emissions by a qualified observer. The qualified field 
    observer should do the following:
        2.2.1  Position. Stand at a position at least 5 meters from the 
    fugitive dust source in order to provide a clear view of the 
    emissions with the sun oriented in the 140-degree sector to the 
    back. Consistent as much as possible with maintaining the above 
    requirements, make opacity observations from a position such that 
    the line of vision is approximately perpendicular to the plume and 
    wind direction. As much as possible, if multiple plumes are 
    involved, do not include more than one plume in the line of sight at 
    one time.
        2.2.2  Field Records. Record the name of the plant or site, 
    fugitive source location, source type [pile, stack industrial 
    process unit, incinerator, open burning operation activity, material 
    handling (transfer, loading, sorting, etc.)], method of control 
    used, if any, observer's name, certification data and affiliation, 
    and a sketch of the observer's position relative to the fugitive 
    source. Also, record the time, estimated distance to the fugitive 
    source location, approximate wind direction, estimated wind speed, 
    description of the sky condition (presence and color of clouds), 
    observer's position relative to the fugitive source, and color of 
    the plume and type of background on the visible emission observation 
    form when opacity readings are initiated and completed.
        2.2.3  Observations. Make opacity observations, to the extent 
    possible, using a contrasting background that is perpendicular to 
    the line of vision. For roads, storage piles, and parking lots, make 
    opacity observations approximately 1 meter above the surface from 
    which the plume is generated. For other fugitive sources, make 
    opacity observations at the point of greatest opacity in that 
    portion of the plume where condensed water vapor is not present. For 
    intermittent sources, the initial observation should begin 
    immediately after a plume has been created above the surface 
    involved. Do not look continuously at the plume but, instead, 
    observe the plume momentarily at 15-second intervals.
        2.3  Recording Observations. Record the opacity observations to 
    the nearest 5 percent every 15 seconds on an observational record 
    sheet. Each momentary observation recorded represents the average 
    opacity of emissions for a 15-second period.
        2.4  Data Reduction for Time-Averaged Regulations. A set of 
    observations is composed of an appropriate number of consecutive 
    observations determined by the averaging time specified. Divide the 
    recorded observations into sets of appropriate time lengths for the 
    specified averaging time. Sets must consist of consecutive 
    observations; however, observations immediately preceding and 
    following interrupted observations shall be deemed consecutive. Sets 
    need not be consecutive in time and in no case shall two sets 
    overlap, resulting in multiple violations. For each set of 
    observations, calculate the appropriate average opacity.
    
    3. Qualification and Testing
    
        3.1  Certification Requirements. To receive certification as a 
    qualified observer, a candidate must be tested and demonstrate the 
    ability to assign opacity readings in 5 percent increments to 25 
    different black plumes and 25 different white plumes, with an error 
    not to exceed 15 percent opacity on any one reading and an average 
    error not to exceed 7.5 percent opacity in each category. Candidates 
    shall be tested according to the procedures described in paragraph 
    3.2. Any smoke generator used pursuant to paragraph 3.2 shall be 
    equipped with a smoke meter which meets the requirements of 
    paragraph 3.3. Certification tests that do not meet the requirements 
    of paragraphs 3.2 and 3.3 are not valid.
        The certification shall be valid for a period of 6 months, and 
    after each 6-month period, the qualification procedures must be 
    repeated by an observer in order to retain certification.
        3.2  Certification Procedure. The certification test consists of 
    showing the candidate a complete run of 50 plumes, 25 black plumes 
    and 25 white plumes, generated by a smoke generator. Plumes shall be 
    presented in random order within each set of 25 black and 25 white 
    plumes. The candidate assigns an opacity value to each plume and 
    records the observation on a suitable form. At the completion of 
    each run of 50 readings, the score of the candidate is determined. 
    If a candidate fails to qualify, the complete run of 50 readings 
    must be repeated in any retest. The smoke test may be administered 
    as part of a smoke school or training program, and may be preceded 
    by training or familiarization runs of the smoke generator during 
    which candidates are shown black and white plumes of known opacity.
        3.3  Smoke Generator Specifications. Any smoke generator used 
    for the purpose of paragraph 3.2 shall be equipped with a smoke 
    meter installed to measure opacity across the diameter of the smoke 
    generator stack. The smoke meter output shall display in-stack 
    opacity, based upon a path length equal to the stack exit diameter 
    on a full 0 to 100 percent chart recorder scale. The smoke meter 
    optical design and performance shall meet the specifications shown 
    in Table A of method 203C. The smoke meter shall be calibrated as 
    prescribed in paragraph 3.3.1 prior to conducting each smoke reading 
    test.
    
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    At the completion of each test, the zero and span drift shall be 
    checked, and if the drift exceeds 1 percent opacity, the 
    condition shall be corrected prior to conducting any subsequent test 
    runs. The smoke meter shall be demonstrated at the time of 
    installation to meet the specifications listed in Table A of method 
    203C. This demonstration shall be repeated following any subsequent 
    repair or replacement of the photocell or associated electronic 
    circuitry including the chart recorder or output meter, or every 6 
    months, whichever occurs first.
        3.3.1  Calibration. The smoke meter is calibrated after allowing 
    a minimum of 30 minutes warm-up by alternately producing simulated 
    opacity of 0 percent and 100 percent. When stable response at 0 
    percent or 100 percent is noted, the smoke meter is adjusted to 
    produce an output of 0 percent or 100 percent, as appropriate. This 
    calibration shall be repeated until stable 0 percent and 100 percent 
    readings are produced without adjustment. Simulated 0 percent and 
    100 percent opacity values may be produced by alternately switching 
    the power to the light source on and off while the smoke generator 
    is not producing smoke.
        3.3.2  Smoke Meter Evaluation. The smoke meter design and 
    performance are to be evaluated as follows:
        3.3.2.1  Light Source. Verify from manufacturer's data and from 
    voltage measurements made at the lamp, as installed, that the lamp 
    is operated within 5 percent of the nominal rated 
    voltage.
        3.3.2.2  Spectral Response of Photocell. Verify from 
    manufacturer's data that the photocell has a photopic response; 
    i.e., the spectral sensitivity of the cell shall closely approximate 
    the standard spectral-luminosity curve for photopic vision which is 
    referenced in (b) of Table A of method 203C.
        3.3.2.3  Angle of View. Check construction geometry to ensure 
    that the total angle of view of the smoke plume, as seen by the 
    photocell, does not exceed 15 degrees. Calculate the total angle of 
    view as follows:
    
    xv = 2 tan-1 d/2L,
    
    Where:
    
    v = total angle of view;
    d = the photocell diameter + the diameter of the limiting aperture; 
    and
    L = distance from the photocell to the limiting aperture.
    
        The limiting aperture is the point in the path between the 
    photocell and the smoke plume where the angle of view is most 
    restricted. In smoke generator smoke meters, this is normally an 
    orifice plate.
        3.3.2.4  Angle of Projection. Check construction geometry to 
    ensure that the total angle of projection of the lamp on the smoke 
    plume does not exceed 15 degrees. Calculate the total angle of 
    projection as follows:
    
    p = 2 tan-1 d/2L
    
    Where:
    
    p = total angle of projection;
    d = the sum of the length of the lamp filament + the diameter of the 
    limiting aperture; and
    L = the distance from the lamp to the limiting aperture.
    
        3.3.2.5  Calibration Error. Using neutral-density filters of 
    known opacity, check the error between the actual response and the 
    theoretical linear response of the smoke meter. This check is 
    accomplished by first calibrating the smoke meter according to 3.3.1 
    and then inserting a series of three neutral-density filters of 
    nominal opacity of 20, 50, and 75 percent in the smoke meter path 
    length. Use filters calibrated within 2 percent. Care 
    should be taken when inserting the filters to prevent stray light 
    from affecting the meter. Make a total of five nonconsecutive 
    readings for each filter. The maximum opacity error on any one 
    reading shall be 3 percent.
        3.3.2.6  Zero and Span Drift. Determine the zero and span drift 
    by calibrating and operating the smoke generator in a normal manner 
    over a 1-hour period. The drift is measured by checking the zero and 
    span at the end of this period.
        3.3.2.7  Response Time. Determine the response time by producing 
    the series of five simulated 0 percent and 100 percent opacity 
    values and observing the time required to reach stable response. 
    Opacity values of 0 percent and 100 percent may be simulated by 
    alternately switching the power to the light source off and on while 
    the smoke generator is not operating.
    
    4. References
    
    1. U. S. Environmental Protection Agency. Standards of Performance 
    for New Stationary Sources; appendix A; Method 9 for Visual 
    Determination of the Opacity of Emissions from Stationary Sources. 
    Final Rule. 39 FR 219. Washington, DC. U. S. Government Printing 
    Office. November 12, 1974.
    2. Office of Air and Radiation. ``Quality Assurance Guideline for 
    Visible Emission Training Programs.'' EPA-600/S4-83-011. Quality 
    Assurance Division. Research Triangle Park, N.C. May 1982.
    3. ``Method 9--Visible Determination of the Opacity of Emissions 
    from Stationary Sources.'' February 1984. Quality Assurance Handbook 
    for Air Pollution Measurement Systems. Volume III, section 3.1.2. 
    Stationary Source Specific Methods. EPA-600-4-77-027b. August 1977. 
    Office of Research and Development Publications, 26 West Clair 
    Street, Cincinnati, OH.
    4. Office of Air Quality Planning and Standards. ``Opacity Error for 
    Averaging and Nonaveraging Data Reduction and Reporting 
    Techniques.'' Final Report-SR-1-6-85. Emission Measurement Branch, 
    Research Triangle Park, N.C. June 1985.
    5. The U. S. Environmental Protection Agency. Preparation, Adoption, 
    and Submittal of State Implementation Plans. Methods for Measurement 
    of PM10 Emissions from Stationary Sources. Final Rule. 
    Federal Register. Washington, DC. U. S. Government Printing Office. 
    Volumes 55. No. 74. pps. 14246-14279. April 17, 1990.
    
    Method 203C--Visual Determination of Opacity of Emissions From 
    Stationary Sources for Instantaneous Limitation Regulations
    
        Method 203C is virtually identical to EPA's Method 9 of appendix 
    A to 40 CFR part 60, except for the data-reduction procedures which 
    have been modified for application to instantaneous limitation 
    regulations. Additionally, Method 203C provides procedures for 
    fugitive dust applications which were unavailable when Method 9 was 
    promulgated. The certification procedures in section 3 are identical 
    to Method 9. These certification procedures are provided in Method 
    203A as well, and, therefore, have not been repeated in this method.
    
    1. Applicability and Principle
    
        1.1  Applicability. This method is applicable for the 
    determination of the opacity of emissions from sources of visible 
    emissions for instantaneous limitations. An instantaneous limitation 
    regulation is an opacity limit which is never to be exceeded.
        1.2  Principle. The opacity of emissions from sources of visible 
    emissions is determined visually by a qualified observer.
    
    2. Procedures
    
        The observer qualified in accordance with section 3 of this 
    method shall use the following procedures for visually determining 
    the opacity of emissions.
        2.1  Procedures for Emissions From Stationary Sources. Same as 
    2.1, Method 203A.
        2.1.1  Position. Same as 2.1.1, Method 203A.
        2.1.2  Field Records. Same as 2.1.2, Method 203A.
        2.1.3  Observations. Make opacity observations at the point of 
    greatest opacity in that portion of the plume where condensed water 
    vapor is not present.
        Do not look continuously at the plume. Instead, observe the plume 
    momentarily at the interval specified in the subject regulation. Unless 
    otherwise specified, a 15-second observation interval is assumed.
        2.1.3.1  Attached Steam Plumes. Same as 2.1.3.1, Method 203A.
        2.1.3.2  Detached Steam Plumes. Same as 2.1.3.2, Method 203A.
        2.2  Procedures for Fugitive Process Dust Emissions.
        2.2.1  Position. Same as section 2.2.1, Method 203A.
        2.2.2  Field Records. Same as section 2.2.2, Method 203A.
        2.2.3  Observations.
        2.2.3.1  Observations for a 15-second Observation Interval 
    Regulations. Same as section 2.2.3, Method 203A.
        2.2.3.2  Observations for a 5-second Observation Interval 
    Regulations. Same as section 2.2.3, Method 203A, except, observe the 
    plume momentarily at 5-second intervals.
        2.3  Recording Observations. Record opacity observations to the 
    nearest 5 percent at the prescribed interval on an observational 
    record sheet. Each momentary observation recorded represents the 
    average of emissions for the prescribed period. If a 5-second 
    observation period is not specified in the applicable regulation, a 
    15-second interval is assumed. The overall time for which recordings 
    are made shall be of a length appropriate to the regulation for 
    which opacity is being measured.
        2.3.1  Recording Observations for 15-second Observation Interval 
    Regulations.
    
    [[Page 41355]]
    
    Record opacity observations to the nearest 5 percent at 15-second 
    intervals on an observational record sheet. Each momentary 
    observation recorded represents the average of emissions for a 15-
    second period.
        2.3.2  Recording Observations for 5-second Observation Interval 
    Regulations. Record opacity observations to the nearest 5 percent at 
    5-second intervals on an observational record sheet. Each momentary 
    observation recorded represents the average of emissions for 5-
    second period.
        2.4  Data Reduction for Instantaneous Limitation Regulations. 
    For an instantaneous limitation regulation, a 1-minute averaging 
    time will be used. Divide the observations recorded on the record 
    sheet into sets of consecutive observations. A set is composed of 
    the consecutive observations made in 1 minute. Sets need not be 
    consecutive in time, and in no case shall two sets overlap. Reduce 
    opacity observations by dividing the sum of all observations 
    recorded in a set by the number of observations recorded in each 
    set.
        2.4.1  Data Reduction for 15-second Observation Intervals. 
    Reduce opacity observations by averaging four consecutive 
    observations recorded at 15-second intervals. Divide the 
    observations recorded on the record sheet into sets of four 
    consecutive observations. For each set of four observations, 
    calculate the average by summing the opacity of the four 
    observations and dividing this sum by four.
        2.4.2  Data Reduction for 5-second Observation Intervals. Reduce 
    opacity observations by averaging 12 consecutive observations 
    recorded at 5-second intervals. Divide the observations recorded on 
    the record sheet into sets of 12 consecutive observations. For each 
    set of 12 observations, calculate the average by summing the opacity 
    of the 12 observations and dividing this sum by 12.
    
    3. Qualification and Test
    
        Same as section 3, Method 203A.
    
           Table A.--Smoke Meter Design and Performance Specifications      
    ------------------------------------------------------------------------
                     Parameter                          Specification       
    ------------------------------------------------------------------------
    a. Light Source...........................  Incandescent lamp operated  
                                                 at nominal rated voltage.  
    b. Spectral response of photocell.........  Photopic (daylight spectral 
                                                 response of the human eye--
                                                 Reference 4.1 of section   
                                                 4.).                       
    c. Angle of view..........................  15 degrees maximum total    
                                                 angle.                     
    d. Angle of projection....................  15 degrees maximum total    
                                                 angle.                     
    e. Calibration error......................  +3-percent      
                                                 opacity, maximum.          
    f. Zero and span drift....................  1-percent       
                                                 opacity, 30 minutes.       
    g. Response time..........................   5 seconds.      
    ------------------------------------------------------------------------
    
    II. Vacant Lots
    
        The following test methods shall be used for determining whether 
    a vacant lot, or portion thereof, has a stabilized surface. Should a 
    disturbed vacant lot contain more than one type of disturbance, 
    soil, vegetation or other characteristics which are visibly 
    distinguishable, test each representative surface for stability 
    separately in random areas according to the test methods in section 
    II. of this appendix and include or eliminate it from the total size 
    assessment of disturbed surface area(s) depending upon test method 
    results. A vacant lot surface shall be considered stabilized if any 
    of the test methods in section II. of this appendix indicate that 
    the surface is stabilized such that the conditions defined in 
    paragraph (b)(16)(ii) of this section are met:
    
    1. Determination of visible crust thickness
    
        Where a visible crust exists, break off a small piece of crust. 
    Check whether it crumbles easily between the fingers. Using a ruler, 
    measure the thickness of the crust. Determination of thickness shall 
    be based on at least three (3) crustal measurements representative 
    of the disturbed surface area. If thin deposits of loose uncombined 
    grains cover more than 50 percent of a crusted surface, apply the 
    test method in section II.2. of this appendix to the loose material 
    to determine whether the surface is stabilized.
    
    2. Determination of Threshold Friction Velocity (TFV)
    
        For disturbed surface areas that are not crusted or vegetated, 
    determine threshold friction velocity (TFV) according to the 
    following sieving field procedure (based on a 1952 laboratory 
    procedure published by W. S. Chepil).
        (i) Obtain and stack a set of sieves with the following 
    openings: 4 millimeters (mm), 2 mm, 1 mm, 0.5 mm, and 0.25 mm. Place 
    the sieves in order according to size openings beginning with the 
    largest size opening at the top. Place a collector pan underneath 
    the bottom (0.25 mm) sieve. Collect a sample of loose surface 
    material from an area at least 30 cm by 30 cm in size to a depth of 
    approximately 1 cm using a brush and dustpan or other similar 
    device. Only collect soil samples from dry surfaces (i.e. when the 
    surface is not damp to the touch). Remove any rocks larger than 1 cm 
    in diameter from the sample. Pour the sample into the top sieve (4 
    mm opening) and cover the sieve/collector pan unit with a lid. 
    Minimize escape of particles into the air when transferring surface 
    soil into the sieve/collector pan unit. Move the covered sieve/
    collector pan unit by hand using a broad, circular arm motion in the 
    horizontal plane. Complete twenty circular arm movements, ten 
    clockwise and ten counterclockwise, at a speed just necessary to 
    achieve some relative horizontal motion between the sieves and the 
    particles. Remove the lid from the sieve/collector pan unit and 
    disassemble each sieve separately beginning with the largest sieve. 
    As each sieve is removed, examine it for loose particles. If loose 
    particles have not been sifted to the finest sieve through which 
    they can pass, reassemble and cover the sieve/collector pan unit and 
    gently rotate it an additional ten times. After disassembling the 
    sieve/collector pan unit, slightly tilt and gently tap each sieve 
    and the collector pan so that material aligns along one side. In 
    doing so, minimize escape of particles into the air. Line up the 
    sieves and collector pan in a row and visibly inspect the relative 
    quantities of catch in order to determine which sieve (or whether 
    the collector pan) contains the greatest volume of material. If a 
    visual determination of relative volumes of catch among sieves is 
    difficult, use a graduated cylinder to measure the volume. Estimate 
    TFV for the sieve catch with the greatest volume using Table 1, 
    which provides a correlation between sieve opening size and TFV.
    
     Table 1.--(Metric Units). Determination of Threshold Friction Velocity 
                                      (TFV)                                 
    ------------------------------------------------------------------------
                                                         Opening   TFV  (cm/
                     Tyler Sieve No.                      (mm)         s)   
    ------------------------------------------------------------------------
    5................................................        4      10%.............................  5                         
     5% and < 10%....................="" 3="">< 5%="" and=""> 1%.....................  2                         
    < 1%........................................="" none.="" ------------------------------------------------------------------------="" 3.="" determination="" of="" flat="" vegetation="" cover="" flat="" vegetation="" includes="" attached="" (rooted)="" vegetation="" or="" unattached="" vegetative="" debris="" lying="" on="" the="" surface="" with="" a="" predominant="" horizontal="" orientation="" that="" is="" not="" subject="" to="" movement="" by="" wind.="" flat="" vegetation="" which="" is="" dead="" but="" firmly="" attached="" shall="" be="" considered="" equally="" protective="" as="" live="" vegetation.="" stones="" or="" other="" aggregate="" larger="" than="" one="" centimeter="" in="" diameter="" shall="" be="" considered="" protective="" cover="" in="" the="" course="" of="" conducting="" the="" line="" transect="" method.="" where="" flat="" vegetation="" exists,="" conduct="" the="" following="" line="" transect="" method.="" (i)="" stretch="" a="" one-hundred="" (100)="" foot="" measuring="" tape="" across="" a="" disturbed="" surface="" area.="" firmly="" anchor="" both="" ends="" of="" the="" measuring="" tape="" into="" the="" surface="" using="" a="" tool="" such="" as="" a="" screwdriver="" with="" the="" tape="" stretched="" taut="" and="" close="" to="" the="" soil="" surface.="" if="" vegetation="" exists="" in="" regular="" rows,="" place="" the="" tape="" diagonally="" (at="" approximately="" a="" 45="" degree="" angle)="" away="" from="" a="" parallel="" or="" perpendicular="" position="" to="" the="" vegetated="" rows.="" pinpoint="" an="" area="" the="" size="" of="" a="" \3/32\="" inch="" diameter="" brazing="" rod="" or="" wooden="" dowel="" centered="" above="" each="" one-foot="" interval="" mark="" along="" one="" edge="" of="" the="" tape.="" count="" the="" number="" of="" times="" that="" flat="" vegetation="" lies="" directly="" underneath="" the="" pinpointed="" area="" at="" one-foot="" intervals.="" consistently="" observe="" the="" underlying="" surface="" from="" a="" 90="" degree="" angle="" directly="" above="" each="" pinpoint="" on="" one="" side="" of="" the="" tape.="" do="" not="" count="" the="" underlying="" surface="" as="" vegetated="" if="" any="" portion="" of="" the="" pinpoint="" extends="" beyond="" the="" edge="" of="" the="" vegetation="" underneath="" in="" any="" direction.="" if="" clumps="" of="" vegetation="" or="" vegetative="" debris="" lie="" underneath="" the="" pinpointed="" area,="" count="" the="" surface="" as="" vegetated="" unless="" bare="" soil="" is="" visible="" directly="" below="" the="" pinpointed="" area.="" when="" 100="" observations="" have="" been="" made,="" add="" together="" the="" number="" of="" times="" a="" surface="" was="" counted="" as="" vegetated.="" this="" total="" represents="" the="" percent="" of="" flat="" vegetation="" cover="" (e.g.="" if="" 35="" positive="" counts="" were="" made,="" then="" vegetation="" cover="" is="" 35="" percent).="" if="" the="" disturbed="" surface="" area="" is="" too="" small="" for="" 100="" observations,="" make="" as="" many="" observations="" as="" possible.="" then="" multiply="" the="" count="" of="" vegetated="" surface="" areas="" by="" the="" appropriate="" conversion="" factor="" to="" obtain="" percent="" cover.="" for="" example,="" if="" vegetation="" was="" counted="" 20="" times="" within="" a="" total="" of="" 50="" observations,="" divide="" 20="" by="" 50="" and="" multiply="" by="" 100="" to="" obtain="" a="" flat="" vegetation="" cover="" of="" 40="" percent.="" (ii)="" conduct="" the="" above="" line="" transect="" test="" method="" an="" additional="" two="" (2)="" times="" on="" areas="" representative="" of="" the="" disturbed="" surface="" and="" average="" results.="" 4.="" determination="" of="" standing="" vegetation="" cover="" standing="" vegetation="" includes="" vegetation="" that="" is="" attached="" (rooted)="" with="" a="" predominant="" vertical="" orientation.="" standing="" vegetation="" which="" is="" dead="" but="" firmly="" rooted="" shall="" be="" considered="" equally="" protective="" as="" live="" vegetation.="" conduct="" the="" following="" standing="" vegetation="" test="" method="" to="" determine="" if="" 30="" percent="" cover="" or="" more="" exists.="" if="" the="" resulting="" percent="" cover="" is="" less="" than="" 30="" percent="" but="" equal="" to="" or="" greater="" than="" 10="" percent,="" then="" conduct="" the="" threshold="" friction="" velocity="" test="" in="" section="" ii.2.="" of="" this="" in="" order="" to="" determine="" whether="" the="" disturbed="" surface="" area="" is="" stabilized="" according="" to="" paragraph="" (b)(16)(ii)(e)="" of="" this="" section.="" (i)="" for="" standing="" vegetation="" that="" consists="" of="" large,="" separate="" vegetative="" structures="" (for="" example,="" shrubs="" and="" sagebrush),="" select="" a="" survey="" area="" representing="" the="" disturbed="" surface="" that="" is="" the="" shape="" of="" a="" square="" with="" sides="" equal="" to="" at="" least="" ten="" (10)="" times="" the="" average="" height="" of="" the="" vegetative="" structures.="" for="" smaller="" standing="" vegetation,="" select="" a="" survey="" area="" of="" three="" (3)="" feet="" by="" 3="" feet.="" (ii)="" count="" the="" number="" of="" standing="" vegetative="" structures="" within="" the="" survey="" area.="" count="" vegetation="" which="" grows="" in="" clumps="" as="" a="" single="" unit.="" where="" vegetation="" of="" different="" height="" and="" width="" exists,="" count="" it="" in="" groups="" with="" similar="" dimensions="" within="" the="" survey="" area.="" for="" each="" group,="" calculate="" the="" frontal="" silhouette="" area="" for="" the="" vegetative="" structures="" according="" to="" the="" following="" equations:="" (average="" height)="" x="" (average="" width)="Average" eq.="" 6="" dimensions="" (average="" dimensions)="" x="" (number="" of="" vegetation)="Eq." 7="" frontal="" silhouette="" area="" frontal="" silhouette="" area="" of="" group="" 1="" +="" frontal="" silhouette="" eq.="" 8="" area="" of="" group="" 2="" (etc..)="Total" frontal="" silhouette="" area="" (total="" frontal="" silhouette="" area/survey="" area)="" x="" 100="Eq." 9="" percent="" cover="" of="" standing="" vegetation="" (ensure="" consistent="" units="" of="" measurement,="" e.g.="" square="" meters="" or="" square="" inches="" when="" calculating="" percent="" cover.)="" (iii)="" within="" a="" disturbed="" surface="" area="" that="" contains="" multiple="" types="" of="" vegetation="" with="" each="" vegetation="" type="" uniformly="" distributed,="" results="" of="" the="" percent="" cover="" associated="" with="" the="" individual="" vegetation="" types="" may="" be="" added="" together.="" (iv)="" repeat="" this="" procedure="" on="" an="" additional="" two="" (2)="" distinct="" survey="" areas="" representing="" the="" disturbed="" surface="" and="" average="" the="" results.="" 5.="" alternative="" test="" methods="" alternative="" test="" methods="" may="" be="" used="" upon="" obtaining="" the="" written="" approval="" of="" the="" epa.="" [fr="" doc.="" 98-20147="" filed="" 7-31-98;="" 8:45="" am]="" billing="" code="" 6560-50-u="">

Document Information

Effective Date:
9/2/1998
Published:
08/03/1998
Department:
Environmental Protection Agency
Entry Type:
Rule
Action:
Final rule.
Document Number:
98-20147
Dates:
The FIP and SIP actions in this document are effective on September 2, 1998.
Pages:
41326-41356 (31 pages)
Docket Numbers:
FRL-6131-6
RINs:
2060-ZA02
PDF File:
98-20147.pdf
Supporting Documents:
» Legacy Index for Docket A-98-09
» Promulgation of Federal Implementation Plan tor Arizona - Phoenix PM-10 Moderate Area; Disapproval of State Implementation Plan for Arizona - Phoenix PM-10 Moderate Area [A-98-09-V-A-1]
» Promulgation of Federal Implementation Plan for Arizona - Phoenix Moderate Area PM-10; Disapproval of State Implementation Plan for Arizona - Phoenix Moderate Area PM-10; Proposed Rulemaking and Withdrawal of 1996 Proposed Rule [A-98-09-III-A-1]
CFR: (4)
40 CFR 52.123
40 CFR 52.124
40 CFR 52.127
40 CFR 52.128