66 FR 29230 - Determination of Attainment of the - U.S. Government ...

29230 Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and RegulationsColombia; Cedula No. 16471549(Colombia) (individual) [SDNT]BUENDIA CUELLAR, Luis Alfonso, c/oGALAPAGOS S.A., Cali, Colombia;Cedula No. 6044411 (Colombia)(individual) [SDNT]CAICEDO VERGARA, Nohemy,(a.k.a.CAICEDO VERGARA, Nohemi), Km. 4 ElPinal, Buenaventura, Colombia; c/oINDUSTRIA DE PESCA SOBRE ELPACIFICO S.A., Buenaventura,Colombia; Cedula No. 31375185(Colombia) (individual) [SDNT]DELGADO GUTIERREZ, Luis Alvaro, c/oTAURA S.A., Cali, Colombia; Cedula No.16718474 (Colombia) (individual)[SDNT]DUQUE BOTERO, Jorge Alirio, Calle 5 No.5A–49, Buenaventura, Colombia; c/oINDUSTRIA DE PESCA SOBRE ELPACIFICO S.A., Buenaventura,Colombia; Cedula No. 616084 (Colombia)(individual) [SDNT]ECHEVERRY HERRERA, Hernando,(a.k.a.ECHEVERRI HERRERA, Hernando), c/oINDUSTRIA DE PESCA SOBRE ELPACIFICO S.A., Buenaventura,Colombia; Cedula No. 1625525(Colombia) (individual) [SDNT]FOMEQUE BLANCO, Amparo, Mz. 21 Casa5 Barrio San Fernando, Pereira,Colombia; c/o INDUSTRIA DE PESCASOBRE EL PACIFICO S.A.,Buenaventura, Colombia; Cedula No.31206092 (Colombia) (individual)[SDNT]FOMEQUE CAMPO, Deicy,(a.k.a. FOMEQUECAMPO, Daysy), Avenida 4N No. 10N–100, Cali, Colombia; c/o INDUSTRIA DEPESCA SOBRE EL PACIFICO S.A.,Buenaventura, Colombia; Cedula No.38650034 (Colombia) (individual)[SDNT]GALAPAGOS S.A., Calle 24N No. 6AN–15,Cali, Colombia; Carrera 115 No. 16B–121, Cali, Colombia; NIT # 800183712–2 (Colombia) [SDNT]GARAVITO, Doris Amelia, c/o GALAPAGOSS.A., Cali, Colombia; Cedula No.31233463 (Colombia) (individual)[SDNT]GARCIA PIZARRO, Gentil Velez, c/oGALAPAGOS S.A., Cali, Colombia;Cedula No. 6616986 (Colombia)(individual) [SDNT]GARCIA VARELA, Luis Fernando, c/oTAURA S.A., Cali, Colombia; Cedula No.16282923 (Colombia) (individual)[SDNT]GILMAN FRANCO, Maria, c/o TAURA S.A.,Cali, Colombia; Cedula No. 22103099(Colombia) (individual) [SDNT]GONGORA ALARCON, Hernando, c/oTAURA S.A., Cali, Colombia; Cedula No.19298944 (Colombia) (individual)[SDNT]GUZMAN VELASQUEZ, Luz Marcela, c/oTAURA S.A., Cali, Colombia; Cedula No.43568327 (Colombia) (individual)[SDNT]HERNANDEZ, Oscar, Mz. 21 Casa 5 BarrioSan Fernando, Pereira, Colombia; c/oTAURA S.A., Cali, Colombia; Cedula No.6157940 (Colombia) (individual) [SDNT]HERRAN SAAVEDRA, Victor Hugo, c/oGALAPAGOS S.A., Cali, Colombia;Cedula No. 16447166 (Colombia)(individual) [SDNT]INDUSTRIA DE PESCA SOBRE EL PACIFICOS.A., (a.k.a. INPESCA S.A.), Km. 5 ElPinal, Buenaventura, Colombia; Av.Simon Bolivar Km. 5 El Pinal,Buenaventura, Colombia; NIT #890302172–4 (Colombia) [SDNT]MORALES CASTRILLON, Victor Hugo, c/oTAURA S.A., Cali, Colombia; Cedula No.16620349 (Colombia) (individual)[SDNT]MORENO DAZA, Ricardo Alfredo, Carrera38D No. 4B–57, Cali, Colombia; c/oGALAPAGOS S.A., Cali, Colombia; c/oTAURA S.A., Cali, Colombia; Cedula No.16631400 (Colombia) (individual)[SDNT]PATIÑO FOMEQUE, Sonia Daysi,(a.k.a.PATIO FOMEQUE, Sonia Daicy), Calle 9Oeste No. 25–106, Cali, Colombia; c/oINDUSTRIA DE PESCA SOBRE ELPACIFICO S.A., Buenaventura,Colombia; Cedula No. 66920533(Colombia) (individual) [SDNT]PATIÑO FOMEQUE, Victor Julio, (a.k.a.PATINO FOMEQUE, Victor Hugo),Avenida 4N No. 10N–100, Cali,Colombia; 6 c/o INDUSTRIA DE PESCASOBRE EL PACIFICO S.A.,Buenaventura, Colombia; c/o TAURAS.A., Cali, Colombia; c/o GALAPAGOSS.A., Cali, Colombia; DOB 31 Jan 1959;Cedula No. 16473543(Colombia)(individual) [SDNT]PATIÑO NARANJO, Joaquin Gustavo,Avenida 4N No. 10N–100, Cali,Colombia; c/o INDUSTRIA DE PESCASOBRE EL PACIFICO S.A.,Buenaventura, Colombia; Cedula No.2730245 (Colombia) (individual) [SDNT]PINZON CEDIEL, John Jairo, c/o TAURAS.A., Cali, Colombia; Cedula No.13542103 (Colombia) (individual)[SDNT]RAMIREZ ESCUDERO, Pedro Emilio, Calle6A No. 48–36, Cali, Colombia; c/oGALAPAGOS S.A., Cali, Colombia;Cedula No. 16280602 (Colombia)(individual) [SDNT]ROMAN DOMINGUEZ, Erika, c/o TAURAS.A., Cali, Colombia; Cedula No.66955540 (Colombia) (individual)[SDNT]SARMIENTO MARTINEZ, Diana, c/oTAURA S.A., Cali, Colombia; Cedula No.65698369 (Colombia) (individual)[SDNT]TAURA S.A., Calle 13 No. 68–06, Of. 204,Cali, Colombia; Calle 13 No. 68–26, Of.214, 313 & 314, Cali, Colombia; Carrera115 No. 16B–121, Cali, Colombia; NIT #800183713–1 (Colombia) [SDNT]VILLADA ZUNIGA, Elmer, Calle 15 No. 20–10, Cali, Colombia; c/o TAURA S.A.,Cali, Colombia; Cedula No. 14988902(Colombia) (individual) [SDNT]ZAMORA RUIZ, Alexander, c/o INPESCAS.A., Buenaventura, Colombia; CedulaNo. 16498805 (Colombia) (individual)[SDNT]2. Appendix A to 31 CFR chapter Vis amended by removing the followingentry:WITTGREEN, Carlos (a.k.a. CarlosWITTGREEN Antinori; a.k.a. CarlosWITTGREEN A.; a.k.a. Carlos AntonioWITTGREEN), Panama (individual)[CUBA]Dated: April 24, 2001.R. Richard Newcomb,Director, Office of Foreign Assets Control.Approved: April 27, 2001.James Sloan,Acting Assistant Secretary (Enforcement),Department of the Treasury.[FR Doc. 01–13451 Filed 5–23–01; 4:32 pm]BILLING CODE 4810–25–PENVIRONMENTAL PROTECTIONAGENCY40 CFR Part 81[AZ–098–0025; FRL–6989–1]Determination of Attainment of the 1-Hour Ozone Standard for the PhoenixMetropolitan Area, Arizona andDetermination Regarding Applicabilityof Certain Clean Air Act RequirementsAGENCY: Environmental ProtectionAgency (EPA).ACTION: Final rule.SUMMARY: EPA is determining that thePhoenix metropolitan serious ozonenonattainment area has attained the 1-hour ozone air quality standard by thedeadline required by the Clean Air Act(CAA), November 15, 1999. Based onthis determination, we also aredetermining that the CAA’srequirements for reasonable furtherprogress and attainment demonstrationsand for contingency measures for the 1-hour ozone standard are not applicableto the area for so long as the Phoenixmetropolitan area continues to attain the1-hour ozone standard.EFFECTIVE DATE: June 29, 2001.FOR FURTHER INFORMATION CONTACT:Doris Lo, Office of Air Planning (AIR–2), U.S. Environmental ProtectionAgency, Region 9, 75 Hawthorne Street,San Francisco, California 94105. (415)744–1287, lo.doris@epa.gov.SUPPLEMENTARY INFORMATION:Table of ContentsI. BackgroundII. Attainment FindingA. Response to Comments on the ProposedFinding of AttainmentB. Attainment Finding for the PhoenixAreaIII. Applicability of Clean Air Act PlanningRequirementsA. EPA’s Policy on the Applicability ofCertain CAA Planning Requirements inAreas Attaining the 1-Hour OzoneStandardB. Response to Comments on EPA’s PolicyVerDate 112000 14:35 May 29, 2001 Jkt 194001 PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM pfrm06 PsN: 30MYR1

Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and Regulations29231C. Effects of the Determination on thePhoenix Area and of a Future Violationon this DeterminationD. Effect of the Determination onTransportation ConformityIV. Administrative RequirementsI. BackgroundUnder CAA section 181(b)(2)(A), wemust determine within six months of anarea’s applicable attainment datewhether an ozone nonattainment areahas attained the 1-hour ozone standard.On May 19, 2000 (65 FR 31859), weproposed to find that the Phoenixmetropolitan serious ozonenonattainment area had attained the 1-hour ozone standard by its Clean AirAct (CAA) mandated attainment date ofNovember 15, 1999. This proposal wasbased on all available, quality-assuredair quality data collected from themonitoring network, which wedetermined met our regulations for stateair quality monitoring networks.II. Attainment FindingA. Response to Comments on theProposed Finding of AttainmentWe received comments on ourproposed attainment finding only fromthe Arizona Center for Law in the PublicInterest (ACLPI). These commentsconcerned the adequacy of the Phoenixarea ozone monitoring network. Werespond to the most important of thesecomments below. Our completeresponses to all comments can be foundin the technical support document(TSD) for this action.Comment: ACLPI claims that EPA’sproposed rulemaking contains noevidence that Maricopa CountyEnvironmental Services Department(MCESD) has made changes to its ozonenetwork in response to the inadequaciesdocumented by EPA in the past. It alsoasserts that the County and the Statehave apparently discontinued the use ofcertain monitoring sites and states itfound particularly troubling thediscontinuance of the Papago Parkmonitor, which recorded the highestozone violation in 1995.Response: We agree that the MaricopaCounty ozone monitoring network wasdeficient when evaluated by EPA in1989 and 1992. However, rather thanreviewing all of the past inadequaciesand determining whether the Countyaddressed each one, we decided that amore reasonable approach was toevaluate the ozone monitoring networkoperated by MCESD as it existed duringthe attainment period 1997–1999. Wehave worked successfully with theMCESD over the past 9 years to improveits ambient monitoring program. Wehave determined that the ozonemonitoring network as designed andoperated during the attainment period,and at present, meets all applicablefederal regulations. By concluding thatthe network meets our monitoringregulations, we effectively concludedthat MCESD has corrected all pastinadequacies.The issue of whether or not theCounty and/or State has discontinuedthe operation of certain sites is not asimportant as whether the remainingnetwork is designed and operated in amanner that allows the determinationthat the data collected are representativeof ozone air quality in the Phoenix area.We have concluded that the network issufficient to serve that purpose.The Papago Park ozone monitor isstill operating but has been renamed‘‘Emergency Management.’’ Papago Parkwas the name given to the site by theArizona Department of EnvironmentalQuality (ADEQ) which initially operatedthe site. When the County took over thesite, it was renamed EmergencyManagement. The site has been incontinuous operation since it wasestablished in 1990.Comment: ACLPI asserts that EPAacknowledged that the ozone network inPhoenix still fails to meet all of thedesign requirements of 40 CFR part 58in that the network does not meet thethird monitoring objective,‘‘determining the impact on ambientpollution levels of significant sources orsource categories,’’ which can be met bymonitoring emissions from significantsources of nitrogen oxides (NO X ) andvolatile organic compounds (VOC).Response: We stand by our positionthat in designing an ozone monitoringnetwork—that is, a monitoring networkthat measures the concentration of thechemical compound ‘‘ozone’’ (O 3 )—anagency cannot meet the thirdmonitoring objective of assessing theimpact of major sources or sourcecategories since ozone is not emitted byany type of source. Ozone is formed inan atmospheric, photochemical reactionbetween NO X and VOC. Precursoremissions from a source are transportedwell downwind before they react toform ozone. In an urban setting,emissions from large point sources mixwith emissions from area and mobilesources as they are transporteddownwind and form ozone. In thissetting, it is impossible to monitorspecifically for ozone formed from asingle source’s precursor emissions.For areas designated as transitional,marginal, and/or moderate ozonenonattainment areas, there is norequirement to monitor for the chemicalprecursors of ozone. Once an area isdesignated or reclassified to serious orabove, the state is required to institutea photochemical assessment monitoring(PAMS) program under CAA section182(c)(1) and its implementingregulations. PAMS programs require theseasonal monitoring of VOC and NO X atcertain locations in urbannonattainment areas such as downwindof the area’s central business district(type 2 site) and in the downwindarea(s) where maximum ozoneconcentrations are expected to occur(type 3 site).When we reclassified the Phoenixarea as serious in 1997, the design anddeployment of a PAMS network becamea requirement for the area. ADEQ hasbegun the implementation of the area’sPAMS network and has deployed a type2 site and is in the process of installinga type 3 site at this time. ADEQ’simplementation schedule is generallyconsistent with our PAMS regulations.These sites are appropriately located tomeet the PAMS siting requirements. Therequirement for operating a PAMSnetwork remains even though we aremaking a finding that the Phoenix areahas attained the 1-hour ozone NAAQS.Data from the PAMS network, however,are not and cannot be used in makinga determination of whether or not anarea has met the ozone NAAQS becausethe network only monitors for ozoneprecursors and not for ozone itself.Comment: ACLPI asserts thatMaricopa County’s monitoring networkis inadequate because the County failsto operate all of its SLAMS sites yearround,stating that EPA regulationsrequire states to monitor ozone atNAMS and SLAMS sites throughout theozone season and that the ozone seasonin Arizona runs from January throughDecember citing 40 CFR part 58,appendix D. ACLPI also claims thatdespite these regulations, more than halfof the County’s SLAMS sites operateonly between April 1 and October 31.While exceedances of the 1-hour ozonestandard may be rare during the wintermonths, they can occur. Consequently,there is no assurance that theseexceedances would be captured by oneof the annually operating sites due towide spatial and temporal differences inozone concentrations.Response: We disagree with ACLPI’sassertion that the ozone monitoringnetwork is inadequate because a portionof the monitoring sites operates on aseasonal basis. Our regulations at 40CFR 58.25 allow states to makemodifications to their SLAMS networkwith the approval of EPA. The Countymade this modification to its operatingschedule with the full concurrence ofEPA Region 9 (see letter to Ben Davis,Air Quality AIRS Program Coordinator,VerDate 112000 14:35 May 29, 2001 Jkt 194001 PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM pfrm06 PsN: 30MYR1

29232 Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and RegulationsMCESD, from John R. Kennedy, Chief,Technical Support Office, Air Division,U.S. EPA Region 9, November 2, 1999).Moreover, we believe that themonitoring network, even with theseasonal monitors shut down, stillprovides for adequate spatial coverageof the Phoenix nonattainment areaduring the winter months. During thefive months (November through March)the County shuts down eight sites—lessthan half of the ozone monitoringsites—leaving functional the remainingozone network of ten sites operated bythe County as well as a number ofspecial purpose monitoring sitesoperated by ADEQ. The sites that areoperated seasonally are generally thesites recording the lowest ozoneconcentrations.Regarding the possibility ofexceedances of the 1-hour ozonestandard during the November to Marchperiod, we have reviewed ozone data forthe Phoenix area during the period 1980through 1999. In these 19 years, thePhoenix area has had only oneexceedance in the month of April, threein the month of October, and none inthe months of November, December,January, February and March. The vastmajority of ozone exceedances in thePhoenix area occur in the months ofJune, July, August, and September whenthe full network is in operation.We do agree with ACLPI’s statementthat ozone air monitoring serves otherpurposes besides recordingexceedances. We believe that portion ofthe network that operates year roundprovides adequate data for any otherassessment purpose.B. Attainment Finding for the PhoenixAreaThe 1-hour ozone NAAQS is 0.12parts per million (ppm) not to beexceeded on average more than one dayper year over any three-year period. 40CFR 50.9 and appendix H. Wedetermine if an area has attained the 1-hour standard by calculating, at eachmonitor, the average number of daysover the standard per year during thepreceding three-year period. 1 We use allavailable, quality assured monitoringdata. Under CAA section 181(b)(2)(A),1 See generally 57 FR 13506 (April 16, 1992) andMemorandum from D. Kent Berry, Acting Director,Air Quality Management Division, EPA, to RegionalAir Office Directors; ‘‘Procedures for ProcessingBump Ups and Extensions for Marginal OzoneNonattainment Areas,’’ February 3, 1994 (Berrymemorandum). While explicitly applicable only tomarginal areas, the general procedures forevaluating attainment in this memorandum apply tothe Phoenix area in spite of its serious classificationbecause the finding of attainment is being madepursuant to the same Clean Air Act requirementsin section 181(b)(2).we must base our determination ofattainment or failure to attain on thearea’s design value as of its applicableattainment deadline, which for thePhoenix metropolitan area wasNovember 15, 1999. (See section III.C.for a discussion of air quality data afterNovember 15, 1999 and consequences offuture violations.)The design value for the Phoenixmetropolitan ozone nonattainment areafor the 1997 to 1999 period was 0.113ppm. The Phoenix metropolitan areadid not record any exceedances of the1-hour ozone standard at anymonitoring site during the 1997 to 1999period, so the average number of daysover the standard at each monitor in thearea for that three-year period was zero.The complete documentation of themonitoring data and design valuecalculation can be found in the TSD.Because the area’s design value wasbelow the 0.12 ppm 1-hour ozonestandard and the area averaged less than1 exceedance per year at each monitorfor the 1997 to 1999 period, we find thatthe Phoenix metropolitan area attainedthe 1-hour ozone standard by its CleanAir Act mandated attainment deadlineof November 15, 1999.III. Applicability of Clean Air ActPlanning RequirementsA. EPA’s Policy on the Applicability ofCertain CAA Planning Requirements inAreas Attaining the 1-Hour OzoneStandardCAA section 182(c) requires stateswith serious ozone nonattainment areasto comply with the Act’s serious areaSIP requirements. Three of theserequirements are tied to the attainmentdemonstration. They are as follows:1. A demonstration that this plan willresult in emission reductions of ozoneprecursors of at least 3 percent per yearfrom 1996 to 1999 (this provision isknown as the 9 percent rate of progress(ROP) plan), CAA section 182(c)(2)(B);2. A demonstration that the plan willresult in attainment of the 1-hour ozonestandard as expeditiously as practicablebut not later than November 15, 1999,CAA section 182(c)(2)(A);3. Contingency measures that will beundertaken if the area fails to makereasonable further progress, meet a rateof progress milestone, or to attain thestandard by the applicable attainmentdate, CAA sections 172(c)(9) and182(c)(9).We believe that it is reasonable tointerpret the CAA to not require theseprovisions for serious ozonenonattainment areas that are determinedto be meeting the 1-hour ozonestandard. We discuss our reasoning inthe memorandum from John S. Seitz,Director, OAQPS, EPA, to Regional AirDirectors, entitled ‘‘Reasonable FurtherProgress, Attainment Demonstrations,and Related Requirements for OzoneNonattainment Areas Meeting theOzone National Ambient Air QualityStandard,’’ May 10, 1995 (Seitz memo),in the proposal for this action and belowin our response to comments. 2There are a number of other SIPrequirements for serious ozonenonattainment areas that are not tied towhether the area has attained the 1-hourstandard. These elements include anemission inventory of ozone precursors,reasonably available control technologyfor major sources and certain othersources; an enhanced motor vehicleinspection and maintenance program,and an enhanced ambient monitoringprogram. Arizona has already adoptedand submitted these elements to us. 3B. Response to Comments on EPA’sPolicyACLPI also commented on theproposed determination regarding theapplicability of certain CAA planningrequirements to the Phoenix area. Werespond to the most significant of thesecomments below. Our full response toall comments can be found in the TSD.Comment: ACLPI claims that EPA hasillegally exempted the Phoenix areafrom the 9 percent rate of progress(ROP) 4 demonstration, attainmentdemonstration and contingency measurerequirements of the CAA. To supportthis contention, ACLPI makes twoarguments:(1) that, taken together, sections172(c) and 182(c) require that a planrevision for a serious ozonenonattainment area include anattainment demonstration (sections172(c)(1) and 182(c)(2)(A)), a 9 percentROP demonstration (sections 172(c)(2)and 182(c)(2)(B)), and contingencymeasures (section 172(c)(9)); and(2) that the May 10, 1995 policymemorandum on which EPA relies to2 We have also explained at length in otheractions our rationale for the reasonableness of thisinterpretation of the Act and incorporate thoseexplanations by reference here. See 61 FR 20458(May 7, 1996) (Cleveland-Akron-Lorrain, Ohio); 60FR 36723 (July 18, 1995) (Salt Lake and DavisCounties, Utah); 60 FR 37366 (July 20, 1995) and61 FR 31832–33 (June 21, 1996) (Grand Rapids, MI).Our interpretation has also been upheld by theUnited States Court of Appeals for the 10th Circuitin Sierra Club v. EPA, 99 F.3d 1551 (10th Cir. 1996).3 Serious Area Ozone State Implementation Planfor Maricopa County; submitted to EPA by theArizona Department of Environmental Quality onDecember 14, 2000,4 Although section 182(b)(1) (moderate areas) and(c)(2)(B) (serious areas) contain the term‘‘reasonable further progress,’’ EPA often uses theterms ‘‘rate of progress’’ and ‘‘reasonable furtherprogress’’ interchangeably.VerDate 112000 14:35 May 29, 2001 Jkt 194001 PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM pfrm06 PsN: 30MYR1

Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and Regulations29233exempt the Phoenix area from theserequirements flatly contradicts the CAAin that the Act contains no exceptionsfrom its planning requirements for areasthat are potentially eligible forredesignation based on monitoring databut have not yet met the redesignationrequirements of sections 107(d)(3) and175A. ACLPI contends that undersection 175A of the Act until anonattainment area is redesignated anda maintenance plan is approved, therequirements of part D ‘‘shall continuein force and effect with respect to sucharea.’’ (ACLPI acknowledges that theUnited States Court of Appeals for the10th Circuit has upheld the May 10,1995 memorandum but states that thecase was incorrectly decided.)Response: We proposed to find thatthese Clean Air Act requirements arenot applicable to the Phoenix areabecause the area has attained the 1-hourozone standard as demonstrated bythree consecutive years without aviolation. In the proposal for today’saction, we discuss our determinationthat the Phoenix area attained the 1-hour ozone standard by its statutorydeadline of November 15, 1999. See 65FR 31859, 31861. This determination isdocumented in section II of the TSD.The statutory basis for finding thatthese planning requirements are notapplicable is described in the proposaland in the Seitz memo. See 65 FR31859, 31861–31863; Seitz memo at 2–5.Contrary to ACLPI’s assertion, we arenot granting the Phoenix area anexemption from any applicablerequirements under part D. Rather, wehave interpreted the requirements ofsections 182(c)(2)(A) and (B) and172(c)(9) as not being applicable oncean area has attained the standard, aslong as it continues to do so. (Seesection III.C. below.) This is not awaiver of requirements that by theirterms clearly apply; it is a determinationthat certain requirements are written soas to be operative only if the area is notattaining the standard. Ourinterpretation is consistent both withthe CAA’s goal of achieving andmaintaining clean air, and with theconcomitant policy goal of avoidingcostly and unnecessary emissionreductions.As discussed further below, the plainlanguage of CAA sections 182(c)(2)(A)and (B) and 172(c)(9) does not clearlyrequire attainment, reasonable furtherprogress or contingency measure plansfor areas that are designatednonattainment but that have alreadyattained, and continue to attain, thenational ozone standard. However, thevery purpose of these plans is to bringareas that are violating the nationalambient air quality standard for ozoneinto attainment. Consistent with thispurpose, we interpret theserequirements as inapplicable to an areathat has attained the standard, but onlyfor so long as the area remains inattainment. The requirements will againapply if such an area violates thestandard. Thus, our interpretation isstrictly limited to circumstances inwhich no further emission reductionsare required for attainment.The language of CAA sections182(c)(2)(A) and (B) is ambiguous as towhether VOC reductions are requiredfor serious nonattainment areas thathave already attained the ozoneNAAQS, but that have not yet beenredesignated to attainment status. Whilethe lead-in sentence to these tworequirements states that ‘‘* * * theState shall submit a revision to theapplicable implementation plan * * *,’’subsection (c)(2)(A) calls for ademonstration that the plan willprovide for attainment of the NAAQS‘‘by the applicable attainment date.’’Subsection (c)(2)(B) provides that the 9percent plan ‘‘will result in VOCemissions reductions * * * until theattainment date.’’ Thus, the language ofsections 182(c)(2)(A) and (B) as a wholebegs the question of whether anyreductions are required for areas that arealready in attainment and thereforeneed no reductions in VOC emissions toachieve the ozone NAAQS by theattainment date.Section 182(c)(2)(B) is entitled‘‘Reasonable Further Progressdemonstration.’’ The term ‘‘reasonablefurther progress’’ is defined as ‘‘suchannual incremental reductions inemissions of the relevant air pollutant asare required by this part or mayreasonably be required by [EPA] for thepurpose of ensuring attainment of theapplicable [NAAQS] by the applicabledate.’’ CAA section 171(1). Thisdefinition applies for the purposes ofpart D of title I of the CAA, whichincludes section 182(c). Thus, the term‘‘reasonable further progress’’ requiresonly such reductions in emissions as arenecessary to attain the NAAQS by theattainment date and no more.Accordingly, our interpretation ofsection 182(c)(2)(B) is consistent withthe statutory definition of ‘‘reasonablefurther progress.’’ Moreover, ourinterpretation is tightly bound to thepurpose of section 182(c)(2)(B) becausewe interpret that section’s requirementsto be applicable to areas that lapse backinto violation prior to redesignation,and which therefore need additionalprogress towards attainment.Furthermore, our interpretation of therequirements of section 182(c)(2)(B) isconsistent with our interpretation of thegeneral reasonable further progressrequirements of CAA section 172. In theGeneral Preamble interpreting certainprovisions of part I of the CAAAmendments of 1990, we explained thatthe reasonable further progressrequirements of CAA section 172(c)(2)do not apply when ‘‘evaluating a requestfor redesignation to attainment, since, ata minimum, the air quality data for thearea must show that the area has alreadyattained [the NAAQS] * * * [and] RFPtowards attainment will, therefore, haveno meaning at that point.’’ 57 FR at13564. This interpretation of therequirements of section 172(c) wasmade shortly after the CAAAmendments of 1990 and we haveconsistently adhered to thisinterpretation. See 60 FR at 30190(noting consistency of interpretation).As with the RFP requirement, if anarea has in fact monitored attainment ofthe standard, we believe there is noneed for an area to make a furthersubmission containing additionalmeasures to achieve attainment. Thusthe attainment demonstrationrequirement in section 182(c)(2)(A)would no longer apply under thesecircumstances. Seitz memo at 3.We likewise determined that section172(c)(9) does not require a contingencymeasure plan for nonattainment areas,such as Phoenix, which we determine tohave attained the standard prior toredesignation. The contingencymeasures plan is required for an areathat ‘‘fails to make reasonable furtherprogress, or to attain the [NAAQS] bythe attainment date * * *’’ If, as in thecase of Phoenix, we determine that anarea has attained the standard by itsattainment date, then by definition suchan area is not one to which contingencymeasures apply. There is simply nofailure to attain by the attainment dateor make progress for which additionalmeasures need be contingent. However,as with sections 182(c)(2)(A) and (B), weinterpret section 172(c)(9)’srequirements to be applicable to areasthat lapse back into violation prior toredesignation, and that therefore needadditional progress towards attainment.Thus, our interpretation ensures that thepurposes of section 172(c)(9)—toprovide for reasonable progress towards,and the attainment of, clean air—will beserved when necessary.We also do not agree with ACLPI’scontention that the Agency is violatingsection 175A(c) when it determines thatthe RFP, attainment and contingencymeasure requirements do not apply toareas that have attained the NAAQS.VerDate 112000 14:35 May 29, 2001 Jkt 194001 PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM pfrm06 PsN: 30MYR1

29234 Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and RegulationsSection 175A(c) provides that therequirements of part D remain in forceand effect for an area until such time asit is redesignated. Section 175A(c) doesnot establish any additional substantiverequirements; rather, it ensures that therequirements that do apply by virtue ofother Act provisions continue to applyuntil an area is redesignated. If,however, an Act provision does notapply to an area or does not require thatthe particular area in question submit aSIP revision, section 175A(c) does notsomehow add to the requirements withwhich the area must comply. In thisinstance, EPA is interpreting theunderlying substantive requirements atissue so as not to apply to areas for solong as they continue to attain thestandard. This does not violate section175A(c); it is an interpretation of thesubstance of other provisions of the Act,a matter that is not affected by section175A(c). Other requirements that do notdepend on whether the area has attainedthe standard, such as VOC RACTrequirements, continue to apply,however, and section 175A(c) ensuresthat they continue to apply until thearea is redesignated.Finally, in Sierra Club, the TenthCircuit Court of Appeals upheld theSeitz memo as it applies to moderateozone nonattainment areas. There,pending completion of the redesignationprocess, and based on three years of airquality data, EPA found that two UtahCounties that were designated asnonattainment for ozone and classifiedas moderate had attained the ozoneNAAQS. As a result, EPA determinedthat the CAA’s moderate arearequirements for attainment and RFPdemonstrations, and contingencymeasures (sections 182(b)(1)(A) and172(c)(9)) were inapplicable. Findingthat this determination was a logicalextension of EPA’s original, generalinterpretation in the General Preamble,the Court accorded deference to EPA’sinterpretation that once a moderateozone nonattainment area has attainedthe NAAQS, the moderate area CAArequirements for RFP, attainment andcontingency measures no longer apply.Id. at 1556. Although the Phoenix areais a serious nonattainment area, there isno doubt that the analogous serious areaprovisions serve exactly the samepurpose as the provisions at issue inSierra Club for moderate areas. Thus theCourt’s reasoning in that case appliesequally to the Phoenix situation.Comment: As stated above, ACLPIclaims that the Act specifically requiresthat until a nonattainment area isredesignated and a maintenance planapproved the requirements of part Dremain in force and effect with respectto such area, citing CAA section175A(c). ACLPI argues that ‘‘Congressdetermined that in the interest ofprotecting public health, EPA shouldnot be permitted to waivenonattainment planning requirementsuntil states could provide sufficientassurances that the NAAQS would bepermanently maintained’’ and that ‘‘it isnot the place of EPA to second guessthis policy determination.’’Response: The requirement that statesprovide sufficient assurances that theNAAQS will be permanentlymaintained is a criterion for theredesignation of an area to attainmentunder section 107(d)(3)(E) and not for afinding of attainment under section181(b)(1). We did not propose toredesignate the Phoenix area toattainment. Before we can do that,Arizona will need to provide, amongother things, sufficient assurances in theform of an adequate maintenance planthat the NAAQS will be ‘‘permanently’’maintained. As we have stated above weare not waiving these requirements butare determining that by the language ofthe CAA, they do not apply.Comment: ACLPI also argues thatthere is a sound public policy reason forthe Act’s approach because a state’smonitored compliance with a NAAQSmay reflect only a temporaryimprovement in air quality due tounusually favorable meteorologicalconditions rather than ‘‘permanent andenforceable reductions in emissions’’ ofa pollutant or pollutant precursors.Response: The requirement todetermine that clean air is the result of‘‘permanent and enforceable reductionsin emissions’’ is a criterion for theredesignation of an area to attainmentunder section 107(d)(3)(E) and not for afinding of attainment under section181(b)(1). We did not propose toredesignate the Phoenix area toattainment.That aside, we believe that the findingof attainment itself addresses in part theconcern about unusually favorablemeteorological conditions. We havelong recognized that meteorologicalconditions have a profound effect onambient ozone concentrations. In settingthe current 1-hour ozone standard in1979, we changed the form of thestandard, i.e., the criterion fordetermining attainment, from adeterministic form ‘‘no more than onceper year’’ to a statistical form ‘‘when theexpected number of days per year is lessthan or equal to one’’ over a three-yearperiod in order to properly account forthe random nature of meteorologicalvariations. The three-year period foraveraging the expected number ofexceedances was a reasoned balancebetween evening out meteorologicaleffects and properly addressing realchanges in emission levels. See theproposal and final actions promulgatingthe current 1-hour ozone standard at 43FR 26962, 26968 (June 22, 1978) and 44FR 8202, 8218 (February 8, 1979).Moreover, the Phoenix area did notjust barely meet the 1-hour ozonestandard; it met the standard with roomto spare. An area can record up to threedays of air quality above the 1-hourozone standard at any one monitorduring a successive three-year periodand still be considered attaining thestandard. The Phoenix area fared muchbetter than that, recording not a singleday over the standard at any of its 20ozone monitors from 1997 through1999. This record of clean air hascarried into a fourth year. During the2000 ozone season, the Phoenix areaagain did not record a single exceedanceof the 1-hour ozone standard. See TSDat pp. 12–13. The area’s design value,which is a measure of the severity of anarea’s ozone problem and is used toestablish an area’s initial classification,was 10 percent below the standard anda 16 percent drop from its design valuefor the preceding three-year (1994–1996)period.Furthermore, under EPA’sredesignation guidance, there are twoaspects to ‘‘permanent and enforceableemission reductions.’’ One is unusuallyfavorable meteorology. The other is atemporary reduction in emission ratescaused by shutdowns or reducedproduction due to temporary adverseeconomic conditions. SeeMemorandum, John Calcagni, Director,Air Quality Management Division(OAQPS), to Regional Air Directors,‘‘Procedures for Processing Requests toRedesignate Areas to Attainment,’’September 4, 1992, page 4. ‘‘Adverse’’ isnot a term that could be applied to theeconomy of the greater Phoenix areaover the last several years.In addition, we believe that thePhoenix area’s record of clean air can betied directly to permanent andenforceable emission reductions. Thearea is subject to a comprehensive ozonecontrol strategy that includes nationalon-road motor vehicle standards,national non-road engine standards,national consumer product standards,Arizona’s cleaner burning gasoline andvehicle emission inspection programs,and Maricopa County’s industrial andcommercial source rules. This strategyleaves few, if any, sources of VOCunregulated.Comment: ACLPI claims that EPAimplicitly recognizes the possibility thatthe Phoenix area may violate the ozoneNAAQS again. However, ACLPI statesVerDate 112000 14:35 May 29, 2001 Jkt 194001 PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM pfrm06 PsN: 30MYR1

Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and Regulations29235that EPA then dismisses this possibilitywith the observation that it can requirea SIP revision containing the missingelements if a violation occurs. ACLPIasserts that this approach will not help‘‘those who needlessly suffer fromunhealthy ozone levels that could havebeen avoided through compliance withthe Act, noting that SIP revisions takemonths, sometimes years to complete.’’Finally, ACLPI contends that the ‘‘moreresponsible policy is the one adopted byCongress which requires states to adhereto the Act’s nonattainment planningrequirements until they can demonstratethat redesignation of an area toattainment is warranted.’’Response: The Seitz memo explicitlyaddresses the consequences of futureviolations of the 1-hour ozone standard.In the proposal for today’s action, wemerely described this policy as it wouldapply to the Phoenix area if the areawere to violate the standard in thefuture. While this could be interpretedas acknowledging the possibility offuture violations in the Phoenix area, itis not an acknowledgment of theprobability of future violations.Furthermore, ozone will continue tobe controlled in the Phoenix area inspite of this finding of attainment andthe concurrent finding that certain CAAplanning requirements no longer apply.As noted above, the State of Arizonaand the Maricopa CountyEnvironmental Services Department, thelocal air pollution control agency, haveadopted a comprehensive ozone controlprogram for the Phoenix area. All theseexisting ozone control measures remainin place and these agencies remainobligated to fully implement andenforce them. Most are SIP-approved orhave been submitted for SIP approval.See appendix A of the ‘‘Serious AreaOzone State Implementation Plan forMaricopa County,’’ submitted to EPA onDecember 14, 2000.In addition, the area will be thebeneficiary of substantial new controlsover the next few years. The two largestsource categories of VOC emissions inthe Phoenix area, in order, are gasolinepoweredon-road vehicles and gasolinepowerednon-road engines. Severalalready adopted state and federalmeasures will be implemented over thenext few years that will further reduceemissions from these categories. Thesemeasures include Arizona’simplementation of the final, morestringent cut points for the VehicleEmissions Inspection Program (VEI) andexpansion of that program and theState’s Cleaner Burning Gas (CBG)program into growing areas thatsurround the core Phoenix urbanizedarea. Id.Nationally, we have issued our tier 2on-road motor vehicle standardscovering both light duty cars and lightduty trucks including sports utilityvehicles. 65 FR 6697 (February 10,2000). For non-road engines, we haveestablished emission limitations for newnon-road engines of all types. Many ofthese standards have tiered emissionstandards that become increasinglystringent in future years. See, forexample, the tier 2 standards for smallgasoline-powered nonroad engines at 65FR 24267 (April 25, 2000).The Phoenix area will also benefitfrom national standards on the VOCcontent of consumer products requiredby CAA section 183(e). These standardscontrol the VOC content of suchconsumer products as paints, hairsprays, household pesticides, andmiscellaneous other consumer goods. 63FR 48819 (September 11, 1998). We alsocontinue to issue maximum availablecontrol technology (MACT) standardsunder CAA section 112(d) to reducehazardous air pollutants from stationarysources, most of which target VOCemissions. 40 CFR part 61.Finally, we note that under ACLPI’sconstruction of the CAA, the Phoenixarea would face the prospect ofmandatory sanctions under CAA section179(a) for failing to submit the 9 percentreasonable further progress, attainmentdemonstration, and contingencymeasures plans. For example, underACLPI’s interpretation of CAA section182(c)(2)(B), Arizona would have toadopt controls for the Phoenix area thatwould reduce VOC emissions by 9percent despite the fact that the area hasattained and continues to attain the 1-hour ozone NAAQS. These measureswould impose additional costs upon thearea’s residents although they areunnecessary for clean air. Thus, ACLPI’sinterpretation would not only requiremeasures that are not necessary forattaining the standard, it could also leadto sanctions for failing to submit thesemeasures. EPA’s contrary interpretationwould not require unnecessary emissionreductions or sanctions for a state’sfailure to undertake such reductions.C. Effects of the Determination on thePhoenix Area and of a Future Violationon This DeterminationDuring the 2000 ozone season, thePhoenix area continued its record ofclean air, experiencing no exceedancesof the 1-hour ozone standard. In short,the area remains in attainment of the 1-hour ozone standard as of the date ofthis final action. Based on our findingthat the Phoenix metropolitan area isattaining the 1-hour ozone standard, weare finding that the State of Arizona isno longer required to submit a 9 percentROP plan, an attainment demonstration,or contingency measures for the area.The lack of a requirement to submitthese SIP revisions will exist only aslong as the Phoenix metropolitan areacontinues to attain the 1-hour ozonestandard. If we subsequently determinethat the Phoenix area has violated the 1-hour ozone standard (prior to aredesignation to attainment), the basisfor the determination that the area neednot make these SIP revisions would nolonger exist. Thus, a determination thatan area need not submit these SIPrevisions amounts to no more than asuspension of the requirements for solong as the area continues to attain thestandard.Should the Phoenix metropolitan areabegin to violate the 1-hour standard, wewill notify Arizona that we havedetermined that the area is no longerattaining the 1-hour standard. We alsowill provide notice to the public in theFederal Register. Once we determinethat the area is no longer attaining the1-hour ozone standard then Arizonawill be required to address the pertinentSIP requirements within a reasonableamount of time. We will set thedeadline for the State to submit therequired SIP revisions at the time wemake a nonattainment finding.Arizona must continue to operate anappropriate air quality monitoringnetwork, in accordance with 40 CFRpart 58, to verify the attainment statusof the area. The air quality data reliedupon to determine that the area isattaining the ozone standard must beconsistent with 40 CFR part 58requirements and other relevant EPAguidance.D. Effect of the Determination onTransportation ConformityCAA section 176(c) requires thatfederally funded or approvedtransportation actions in nonattainmentareas ‘‘conform’’ to the area’s air qualityplans. Conformity ensures that federaltransportation actions do not worsen anarea’s air quality or interfere with itsmeeting the air quality standards.One of the primary tests forconformity is to show thattransportation plans and improvementprograms will not cause motor vehicleemissions to rise above the levelsneeded for progress toward andattainment with the air qualitystandards. These motor vehicleemissions levels are set in an area’sattainment, maintenance, and/or RFPdemonstration and are known as the‘‘transportation conformity budget.’’EPA set the current ozone conformitybudget for the Phoenix metropolitanVerDate 112000 14:35 May 29, 2001 Jkt 194001 PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM pfrm06 PsN: 30MYR1

29236 Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / Rules and Regulationsarea in our revised federal 15 percentROP plan. 64 FR 36243 (July 6, 1999).Today’s finding (i.e., that the Phoenixarea has attained the 1-hour ozonestandard and that the State no longerneeds to submit attainment and ROP/RFP demonstrations) will not affect thecontinued applicability of the existingbudget. This budget will remainapplicable until Arizona submits amaintenance demonstration with arevised transportation conformitybudget (or until Arizona submitsattainment and RFP/ROPdemonstrations with a revised budgetshould the Phoenix area again violatethe 1-hour ozone standard) and we findthe new budget adequate.IV. Administrative RequirementsThis action merely finds that thePhoenix area has attained a previouslyestablished national ambient air qualitystandard based on an objective review ofmeasured air quality data. It alsodetermines that certain Clean Air Actrequirements no longer apply to thePhoenix area because of the attainmentfinding. It will not impose any newregulations, mandates, or additionalenforceable duties on any public,nongovernmental or private entity.Accordingly, the Administrator certifiesthat this rule will not have a significanteconomic impact on a substantialnumber of small entities under theRegulatory Flexibility Act (5 U.S.C. 601et seq.). Under Executive Order 12866,Regulatory Planning and Review (58 FR51735, October 4, 1993), this rule is nota ‘‘significant regulatory action’’ andtherefore is not subject to review by theOffice of Management and Budget. Itdoes not contain any unfunded mandateor significantly or uniquely affects smallgovernments, as described in theUnfunded Mandates Reform Act of 1995(Public Law 104–4). This rule also doesnot have a substantial direct effect onone or more Indian tribes, on therelationship between the FederalGovernment and Indian tribes, or on thedistribution of power andresponsibilities between the FederalGovernment and Indian tribes, asspecified by Executive Order 13175 (65FR 67249, November 9, 2000). This rulewill not have substantial direct effectson the States, on the relationshipbetween the national government andthe States, or on the distribution ofpower and responsibilities among thevarious levels of government, asspecified in Executive Order 13132,Federalism (64 FR 43255, August 10,1999) because it does not alter therelationship or the distribution of powerand responsibilities established in theClean Air Act. This rule also is notsubject to Executive Order 13045,Protection of Children fromEnvironmental Health Risks and SafetyRisks (62 FR 19885, April 23, 1997),because it is not economicallysignificant.The requirements of section 12(d) ofthe National Technology Transfer andAdvancement Act of 1995 (15 U.S.C.272 note) do not apply because it wouldbe inconsistent with applicable law forEPA, when determining the attainmentstatus of an area, to use voluntaryconsensus standards in place ofpromulgated air quality standards andmonitoring procedures that otherwisesatisfy the provisions of the Clean AirAct. As required by section 3 ofExecutive Order 12988, Civil JusticeReform (61 FR 4729, February 7, 1996),in issuing this rule, EPA has taken thenecessary steps to eliminate draftingerrors and ambiguity, minimizepotential litigation, and provide a clearlegal standard for affected conduct. EPAhas complied with Executive Order12630, Governmental Actions andInterference with ConstitutionallyProtected Property Rights (53 FR 8859,March 15, 1988) by examining thetakings implications of the rule inaccordance with the ‘‘AttorneyGeneral’s Supplemental Guidelines forthe Evaluation of Risk and Avoidance ofUnanticipated Takings’’ issued underthe executive order. This rule does notimpose an information collectionburden under the provisions of thePaperwork Reduction Act of 1995 (44U.S.C. 3501 et seq.).The Congressional Review Act, 5U.S.C. 801 et seq., as added by the SmallBusiness Regulatory EnforcementFairness Act of 1996, generally providesthat before a rule may take effect, theagency promulgating the rule mustsubmit a rule report, which includes acopy of the rule, to each House of theCongress and to the Comptroller Generalof the United States. EPA will submit areport containing this rule and otherrequired information to the U.S. Senate,the U.S. House of Representatives, andthe Comptroller General of the UnitedStates prior to publication of the rule inthe Federal Register. A major rulecannot take effect until 60 days after itis published in the Federal Register.This action is not a ‘‘major rule’’ asdefined by 5 U.S.C. 804(2).Under section 307(b)(1) of the CleanAir Act, petitions for judicial review ofthis action must be filed in the UnitedStates Court of Appeals for theappropriate circuit by July 30, 2001.Filing a petition for reconsiderationby the Administrator of this final ruledoes not affect the finality of this rulefor the purposes of judicial review nordoes it extend the time within which apetition for judicial review may be filed,and shall not postpone the effectivenessof such rule or action. This action maynot be challenged later in proceedings toenforce its requirements. (See section307(b)(2).)List of Subjects in 40 CFR Part 81Environmental protection, Airpollution control, Intergovernmentalrelations, Ozone, Reporting andrecordkeeping requirements.Authority: 42 U.S.C. 7401–7671q.Dated: May 14, 2001.Laura Yoshii,Acting Regional Administrator, Region 9.[FR Doc. 01–13512 Filed 5–29–01; 8:45 am]BILLING CODE 6560–50–PFEDERAL COMMUNICATIONSCOMMISSION47 CFR Part 73[MM Docket No. 93–314 RM–8396]Radio Broadcasting Services; Cadizand Oak Grove, KYAGENCY: Federal CommunicationsCommission.ACTION: Final rule.SUMMARY: At the request of HamBroadcasting, Inc. this document setsaside the action in this proceedingwhich substituted Channel 293C3 forChannel 292A at Cadiz, reallottedChannel 293C3 to Oak Grove, andmodified the Station WKDZ–FM licenseto specify operation on Channel 293C3at Oak Grove. See 61 FR 31449,published June 20, 1996. This documentalso dismisses an Application forReview filed by Southern BroadcastingCorporation directed against that action.The Station WKDZ–FM license willspecify operation on Channel 293C3 atCadiz in accordance with the grant of aconstruction permit application (FileNo. BPH–20000427ABE). With thisaction, the proceeding is terminated.DATES: Effective May 30, 2001.FOR FURTHER INFORMATION CONTACT:Robert Hayne, Mass Media Bureau,(202) 418–2177.SUPPLEMENTARY INFORMATION: This is asynopsis of the Commission’sMemorandum Opinion and Order inMM Docket No. 93–314, adopted May 9,2001, and released May 11, 2001. Thefull text of this decision is available forinspection and copying during normalbusiness hours in the FCC’s ReferenceInformation Center at Portals II, CY–A257, 445 12th Street, SW.,VerDate 112000 14:35 May 29, 2001 Jkt 194001 PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM pfrm06 PsN: 30MYR1