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

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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
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