

[Federal Register: August 8, 2006 (Volume 71, Number 152)]
[Rules and Regulations]               
[Page 44920-44926]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08au06-8]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-R09-OAR-2006-AZ-0388; FRL-8206-4]

 
Approval and Promulgation of Implementation Plans; Designation of 
Areas for Air Quality Planning Purposes; State of Arizona; Finding of 
Attainment for Rillito Particulate Matter of 10 Microns or Less 
(PM10) Nonattainment Area; Determination Regarding 
Applicability of Certain Clean Air Act Requirements; Correction

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to determine that the 
Rillito moderate PM10 nonattainment area in Arizona attained 
the National Ambient Air Quality Standards for particulate matter with 
an aerodynamic diameter less than or equal to a nominal 10 micrometers 
(PM10) by the applicable attainment date. EPA also finds 
that the Rillito area is currently attaining the PM10 
standards, and based on this latter finding, EPA is determining that 
certain Clean Air Act requirements are not applicable for so long as 
the Rillito area continues to attain the PM10 standards. 
Lastly, EPA is correcting an error in a previous rulemaking that 
involved the classification of PM10 nonattainment areas 
within the State of Arizona.

DATES: This rule is effective on October 10, 2006, without further 
notice, unless EPA receives adverse comments by September 7, 2006. If 
adverse comment is received, EPA will publish a timely withdrawal of 
the direct final rule in the Federal Register informing the public that 
the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2006-AZ-0388 by one of the following methods:
     Federal eRulemaking portal: http://www.regulations.gov. 

Follow the on-line instructions for submitting comments.
     E-mail: tax.wienke@epa.gov.
     Fax: (415) 947-3579 (please alert the individual listed in 
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
     Mail: Wienke Tax, Office of Air Planning, Environmental 
Protection Agency (EPA), Region 9, Mailcode AIR-2, 75 Hawthorne Street, 
San Francisco, California 94105-3901.
     Hand Delivery: Wienke Tax, Office of Air Planning, 
Environmental Protection Agency (EPA), Region 9, Mailcode AIR-2, 75 
Hawthorne Street, San Francisco, California 94105-3901. Such deliveries 
are only accepted Monday through Friday, 8 a.m. to 4:55 p.m., excluding 
Federal holidays. Special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R09-OAR-
2006-AZ-0388. EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at http://www.regulations.gov, including any personal 

information provided, unless the comment includes information claimed 
to be Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Do not submit information 
that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 

is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA, without 
going through http://www.regulations.gov, your e-mail address will be 

automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm
.

    Docket: All documents in the docket are listed in the http://www.regulations.gov
 index. Although listed in the index, some 

information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy 
form. Publicly available docket materials are available either 
electronically in http://www.regulations.gov or in hard copy at the 

Office of Air Planning, Environmental Protection Agency (EPA), Region 
9, Mailcode AIR-2, 75 Hawthorne Street, San Francisco, California 
94105-3901. EPA requests that if at all possible, you contact the 
individual listed in the FOR FURTHER INFORMATION CONTACT section to 
view the hard copy of the docket. You may view the hard copy of the 
docket Monday through Friday, 8 a.m. to 4 p.m., excluding Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Wienke Tax, Office of Air Planning, 
Environmental Protection Agency (EPA), Region 9, Mailcode AIR-2, 75 
Hawthorne Street, San Francisco, California 94105-3901, (520) 622-1622, 
tax.wienke@epa.gov.


SUPPLEMENTARY INFORMATION: Throughout this document, wherever ``we,'' 
``us,'' or ``our'' is used, we mean the EPA.

Table of Contents

I. Background
    A. What National Ambient Air Quality Standards (NAAQS) Are 
Considered In Today's Finding?
    B. What Is The Designation and Classification of This PM\10\ 
Nonattainment Area?

[[Page 44921]]

    C. How Do We Make Attainment Determinations?
II. What Is The Basis for EPA's Determination That the Rillito Area 
Has Attained The PM10 NAAQS?
III. What Are the Applicable Planning Requirements For the Rillito 
Area as a Result of EPA's Attainment Determination?
IV. EPA's Final Action
V. Statutory and Executive Order Reviews

I. Background

A. What National Ambient Air Quality Standards (NAAQS) Are Considered 
In Today's Finding?

    National Ambient Air Quality Standards (NAAQS) are safety 
thresholds for certain ambient air pollutants set by EPA to protect 
public health and welfare. Particulate matter with an aerodynamic 
diameter of less than or equal to 10 micrometers, or PM10, 
is the subject of this action. PM10 is among the ambient air 
pollutants for which EPA has established health-based standards.
    PM10 causes adverse health effects by penetrating deep 
in the lungs, aggravating the cardiopulmonary system. Children, the 
elderly, and people with asthma and heart conditions are the most 
vulnerable.
    On July 1, 1987 (52 FR 24634), EPA revised the NAAQS for 
particulate matter with an indicator that includes only those particles 
with an aerodynamic diameter less than or equal to a nominal 10 
micrometers. See 40 CFR 50.6. The 24-hour primary PM10 
standard is 150 micrograms per cubic meter ([mu]g/m3) with no more than 
one expected exceedance per year. The annual primary PM10 
standard is 50 [mu]g/m3 as an annual arithmetic mean. The secondary 
PM10 standards, promulgated to protect against adverse 
welfare effects, are identical to the primary standards.

B. What Is the Designation and Classification of This PM10 
Nonattainment Area?

    Upon enactment of the 1990 Clean Air Act Amendments (CAA or the 
Act), PM10 areas meeting the requirements of either (i) or 
(ii) of section 107(d)(4)(B) of the Act were designated nonattainment 
for PM10 by operation of law and classified ``moderate.'' 
These areas included all former Group I PM10 planning areas 
identified in 52 FR 29383 (August 7, 1987) and further clarified in 55 
FR 45799 (October 31, 1990), and any other areas violating the NAAQS 
for PM10 prior to January 1, 1989 (many of these areas were 
identified by footnote 4 in the October 31, 1990 Federal Register 
document). A Federal Register notice announcing the areas designated 
nonattainment for PM10 upon enactment of the 1990 Act 
Amendments, known as ``initial'' PM10 nonattainment areas, 
was published on March 15, 1991 (56 FR 11101). A subsequent Federal 
Register document correcting some of these areas was published on 
August 8, 1991 (56 FR 37654). These nonattainment designations and 
moderate area classifications were codified in 40 CFR part 81 in a 
Federal Register document published on November 6, 1991 (56 FR 56694). 
All other areas in the nation not designated nonattainment at enactment 
were designated unclassifiable (see section 107(d)(4)(B)(iii) of the 
Act).
    The Rillito planning area was among the areas listed by EPA as a 
Group I area (see 52 FR 29383, August 7, 1987) and was designated 
nonattainment for PM10 by operation of law and classified 
``moderate.'' In accordance with section 189(a)(2) of the CAA, Arizona 
was to submit a state implementation plan (SIP) by November 15, 1991 
demonstrating attainment of the PM10 standards by December 
31, 1994 for the Rillito area.\1\
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    \1\ Arizona submitted a moderate area PM10 plan for 
the Rillito area on November 14, 1991. EPA found this plan to be 
incomplete by letter dated May 14, 1992. On April 22, 1994, ADEQ 
submitted a revised PM10 plan for Rillito, and EPA found 
it to be complete by letter dated August 18, 1994. EPA has not taken 
action on this 1994 PM10 plan.
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C. How Do We Make Attainment Determinations?

    Pursuant to sections 179(c)(1) and 188(b)(2) of the Act, we have 
the responsibility of determining within six months of the applicable 
attainment date whether, based on air quality data, PM10 
nonattainment areas attained the NAAQS by that date. The ``applicable 
attainment date'' is December 31, 1994 for areas, such as Rillito, that 
were designated as ``moderate'' nonattainment for PM10 by 
operation of law under the 1990 Amended Act. Determinations under 
section 179(c)(1) of the Act are to be based upon an area's ``air 
quality as of the attainment date.'' Section 188(b)(2) is consistent 
with this requirement.
    Generally, we will determine whether an area's air quality meets 
the PM10 NAAQS for purposes of section 179(c)(1) and 
188(b)(2) based upon data gathered at established state and local air 
monitoring stations (SLAMS) and national air monitoring stations (NAMS) 
in the nonattainment area and entered into EPA's Air Quality System 
(AQS) database. Data entered into the AQS have been determined to meet 
federal monitoring requirements (see 40 CFR 50.6; 40 CFR part 50, 
appendix J; 40 CFR part 53; 40 CFR part 58, appendices A and B) and may 
be used to determine the attainment status of areas. We will also 
consider air quality data from other air monitoring stations in the 
nonattainment area provided that the stations meet the federal 
monitoring requirements for SLAMS. All data are reviewed to determine 
the area's air quality status in accordance with our guidance at 40 CFR 
part 50, appendix K.
    Attainment of the annual PM10 standard is achieved when 
the annual arithmetic mean PM10 concentration over a three-
year period is equal to or less than 50 [mu]g/m\3\. Attainment of the 
24-hour standard is determined by calculating the expected number of 
days in a year with PM10 concentrations greater than 150 
[mu]g/m\3\. The 24-hour standard is attained when the expected number 
of days with levels above 150 [mu]g/m\3\ (averaged over a three-year 
period) is less than or equal to one. Three consecutive years of air 
quality data are necessary to show attainment of the 24-hour and annual 
standards for PM10. See 40 CFR part 50, appendix K. A 
complete year of air quality data, as referred to in 40 CFR part 50, 
appendix K, is composed of all four calendar quarters with each quarter 
containing data from at least 75 percent of the scheduled sampling 
days.

II. What Is the Basis for EPA's Determination That the Rillito Area Has 
Attained the PM10 NAAQS?

    The Rillito PM10 nonattainment area is located in north 
central Pima County, just northwest of the Tucson metropolitan area in 
southern Arizona.\2\ The nonattainment area encompasses the following 
nine townships: T11S, R9E through R12E; and T12S, R8E through R12E. The 
incorporated Town of Marana with a population of approximately 8,000 is 
located within the nonattainment area. A smaller community, the 
unincorporated town of Rillito, is located in the portion of the 
nonattainment area historically associated with maximum ambient 
PM10 concentrations. The land use around Rillito is 
predominantly agricultural. The only major (i.e., greater than 100 tons 
per year) stationary point source of air pollution in the nonattainment 
area

[[Page 44922]]

is an Arizona Portland Cement (APC) plant. APC is permitted by ADEQ. 
Most of the other stationary sources are sand and gravel operations 
mining the alluvial deposits of the Santa Cruz River basin. The area in 
and around the nonattainment area is expected to change from rural 
agricultural to residential because it will absorb residential 
development from the Tucson metropolitan area.
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    \2\ In a 1996 rulemaking (61 FR 21372, May 10, 1996) in which we 
found that the Phoenix Planning Area had not attained the 
PM10 NAAQS by the applicable attainment date for moderate 
PM10 nonattainment areas and thus reclassified the area 
as ``serious'', we inadvertently introduced an error into the 
``Arizona--PM-10'' table in 40 CFR 81.303 by moving the entry for 
the Rillito planning area from Pima County to Santa Cruz County. We 
are correcting this error in today's notice under CAA section 
110(k)(6).
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    The Rillito PM10 nonattainment area has one SLAMS 
monitor operated by the Arizona Department of Environmental Quality 
(ADEQ). Located at 8820 West Water Street within the community of 
Rillito, this monitor is approximately 0.5 miles northwest of the 
Arizona Portland Cement plant. This monitor was selected by ADEQ to 
represent maximum PM10 concentration in the area to which 
the public is exposed. Table 1 summarizes the one-in-six day 
PM10 data collected there from 1988-2005.

         Table 1.--Summary of 24 Hour and Annual PM10 Concentrations ([mu]g/m\3\) for Rillito, 1988-2005
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                                                                             PM10 Concentrations
                                                           -----------------------------------------------------
                           Year                              Maximum 24-hour                      3-year annual
                                                              concentration    Annual average        average
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1988......................................................               163             *69.2                NA
1989......................................................               170             *83.3                NA
1990......................................................                94             *39.0             *63.8
1991......................................................               133              37.1             *53.1
1992......................................................                96              33.6            * 36.6
1993......................................................                68              27.6              32.8
1994......................................................                63              28.3              29.8
1995......................................................                91              36.2              30.7
1996......................................................                84              38.3              34.3
1997......................................................               129              41.9              38.8
1998......................................................                81              32.4              37.5
1999......................................................               102              37.8              37.4
2000......................................................               129            * 42.1            * 37.4
2001......................................................                89              33.6            * 37.8
2002......................................................                70              37.1            * 37.6
2003......................................................               118              39.5              36.7
2004......................................................                93              32.2              36.3
2005......................................................                84              39.1              36.9
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* Indicates that the mean does not satisfy criteria for a complete data set.
* Values shown in bold text represent exceedances of the applicable standard.

    As noted above, the 24-hour PM10 standard is attained 
when the expected number of days with levels above 150 [mu]g/m\3\ 
(averaged over a three-year period) is less than or equal to one. Based 
on the data summarized in table 1, above, we find no exceedances of the 
24-hour PM10 standard for the 1992-1994 period and thus the 
expected number of days with levels above 150 [mu]g/m\3\ (averaged over 
that three-year period) is zero. As such, we find that Rillito attained 
the 24-hour PM10 NAAQS by the applicable attainment date 
(1994). Furthermore, since 1994, no exceedances of the 24-hour 
PM10 standard have been recorded at the Rillito monitoring 
station and thus, we find that the area has continued to attain, and is 
currently attaining, the 24-hour standard.
    Also as noted above, attainment of the annual PM10 
standard is achieved when the annual arithmetic mean PM10 
concentration over a three-year period is equal to or less than 50 
[mu]g/m\3\. Review of the data for calendar years 1992-1994 reveals an 
arithmetic average of 29.8 [mu]g/m\3\. As such, we find that Rillito 
attained the annual PM10 standard by the applicable 
attainment date (1994). Since 1994, there have been no exceedances of 
the annual PM10 standard, and thus, we find that the area 
has continued to attain, and is currently attaining, the annual 
standard.

III. What Are The Applicable Planning Requirements For The Rillito Area 
As A Result Of EPA's Attainment Determination?

    The air quality planning requirements for moderate PM10 
nonattainment areas, such as the Rillito nonattainment area, are set 
out in part D, subparts 1 and 4 of title I of the Act. We have issued 
guidance in a General Preamble \3\ describing how we will review SIPs 
and SIP revisions submitted under title I of the Act, including those 
containing moderate PM10 nonattainment area SIP provisions.
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    \3\ ``General Preamble for the Implementation of Title I of the 
Clean Air Act Amendments of 1990'' (57 FR 13498, April 16, 1992, as 
supplemented 57 FR 18070, April 28, 1992).
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    In some designated nonattainment areas, monitored data demonstrates 
that the NAAQS has already been achieved. Based on its interpretation 
of the Act, EPA has determined that certain requirements of part D, 
subparts 1 and 2 (of title I) of the Act do not apply and therefore do 
not require certain submissions for an area that has attained the 
NAAQS. These include reasonable further progress (RFP) requirements, 
attainment demonstrations and contingency measures, because these 
provisions have the purpose of helping achieve attainment of the NAAQS.
    EPA's Clean Data Policy is the subject of two memoranda setting 
forth our interpretation of the provisions of the Act as they apply to 
areas that have attained the relevant NAAQS. EPA also finalized the 
statutory interpretation set forth in the policy in a final rule, 40 
CFR 51.918, as part of its ``Final Rule to Implement the 8-hour Ozone 
National Ambient Air Quality Standard--Phase 2'' (Phase 2 Final Rule). 
See discussion in the preamble to the rule at 70 FR 71645-71646 
(November 29, 2005). EPA believes that the legal bases set forth in 
detail in our Phase 2 Final Rule; our May 10, 1995 memorandum from John 
S. Seitz, entitled ``Reasonable Further Progress, Attainment 
Demonstration, and Related Requirements for Ozone Nonattainment Areas 
Meeting the Ozone National Ambient Air Quality Standard'' (Seitz memo); 
and our

[[Page 44923]]

December 14, 2004 memorandum from Stephen D. Page entitled ``Clean Data 
Policy for the Fine Particle National Ambient Air Quality Standards'' 
(Page memo) are equally pertinent to the interpretation of provisions 
of subparts 1 and 4 applicable to PM10. EPA's interpretation 
of how the provisions of the Act apply to areas with ``clean data'' is 
not logically limited to ozone and PM2.5, because the 
rationale is not dependent upon the type of pollutant. Our 
interpretation that an area that is attaining the standard is relieved 
of obligations to demonstrate RFP and to provide an attainment 
demonstration and contingency measures pursuant to part D of the CAA, 
pertains whether the standard is PM10, ozone, or 
PM2.5.
    The reasons for relieving an area that has attained the relevant 
standard of certain part D, subparts 1 and 2 obligations, applies 
equally to part D, subpart 4, which contains specific attainment 
demonstration and RFP provisions for PM10 nonattainment 
areas. As we have explained in the Phase 2 Final Rule and our ozone and 
PM2.5 clean data memoranda, EPA believes it is reasonable to 
interpret provisions regarding RFP and attainment demonstrations, along 
with related requirements, so as not to require SIP submissions if an 
area subject to those requirements is already attaining the NAAQS 
(i.e., attainment of the NAAQS is demonstrated with three consecutive 
years of complete, quality-assured air quality monitoring data). Three 
U.S. Circuit Courts of Appeals have upheld EPA rulemakings applying its 
interpretation of subparts 1 and 2 with respect to ozone. Sierra Club 
v. EPA, 99 F.3d 1551 (10th Cir. 1996); Sierra Club v. EPA, 375 F.3d 537 
(7th Cir. 2004); Our Children's Earth Foundation v. EPA, No. 04-73032 
(9th Cir. June 28, 2005)(memorandum opinion). It has been EPA's 
longstanding interpretation that the general provisions of part D, 
subpart 1 of the Act (sections 171 and 172) do not require the 
submission of SIP revisions concerning RFP for areas already attaining 
the ozone NAAQS. In the General Preamble, we stated:

    [R]equirements for RFP will not apply in evaluating a request 
for redesignation to attainment since, at a minimum, the air quality 
data for the area must show that the area has already attained. 
Showing that the State will make RFP towards attainment will, 
therefore, have no meaning at that point. 57 FR at 13564.

EPA believes the same reasoning applies to the PM10 
provisions of part D, subpart 4.
    With respect to RFP, section 171(1) states that, for purposes of 
part D of title I, RFP ``means such annual incremental reductions in 
emissions of the relevant air pollutant as are required by this part or 
may reasonably be required by the Administrator for the purpose of 
ensuring attainment of the applicable NAAQS by the applicable date.'' 
Thus, whether dealing with the general RFP requirement of section 
172(c)(2), the ozone-specific RFP requirements of sections 182(b) and 
(c), or the specific RFP requirements for PM10 areas of part 
D, subpart 4, section 189(c)(1), the stated purpose of RFP is to ensure 
attainment by the applicable attainment date. Section 189(c)(1) states 
that:

    Plan revisions demonstrating attainment submitted to the 
Administrator for approval under this subpart shall contain 
quantitative milestones which are to be achieved every 3 years until 
the area is redesignated attainment and which demonstrate reasonable 
further progress, as defined in section 7501(1) of this title, 
toward attainment by the applicable date.

    Although this section states that revisions shall contain 
milestones which are to be achieved until the area is redesignated to 
attainment, such milestones are designed to show reasonable further 
progress ``toward attainment by the applicable attainment date'', as 
defined by section 171. Thus, it is clear that once the area has 
attained the standard, no further milestones are necessary or 
meaningful. This interpretation is supported by language in section 
189(c)(3), which mandates that a state that fails to achieve a 
milestone must submit a plan that assures that the state will achieve 
the next milestone or attain the NAAQS if there is no next milestone. 
Section 189(c)(3) assumes that the requirement to submit and achieve 
milestones does not continue after attainment of the NAAQS.
    If an area has in fact attained the standard, the stated purpose of 
the RFP requirement will have already been fulfilled.\4\ EPA took this 
position with respect to the general RFP requirement of section 
172(c)(2) in the April 16, 1992 General Preamble and also in the May 
10, 1995 memorandum with respect to the requirements of sections 182(b) 
and (c). We are extending that interpretation to the specific 
provisions of part D, subpart 4. In the General Preamble, we stated, in 
the context of a discussion of the requirements applicable to the 
evaluation of requests to redesignate nonattainment areas to 
attainment, that the ``requirements for RFP will not apply in 
evaluating a request for redesignation to attainment since, at a 
minimum, the air quality data for the area must show that the area has 
already attained. Showing that the State will make RFP towards 
attainment will, therefore, have no meaning at that point.'' (57 FR 
13564). See also our September 4, 1992 memorandum from John Calcagni, 
entitled ``Procedures for Processing Requests to Redesignate Areas to 
Attainment'' (Calcagni memo), p. 6.
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    \4\ Thus we believe that it is a distinction without a 
difference that section 189(c)(1) speaks of the RFP requirement as 
one to be achieved until an area is ``redesignated attainment'', as 
opposed to section 172(c)(2), which is silent on the period to which 
the requirement pertains, or the ozone nonattainment area RFP 
requirements in sections 182(b)(1) or 182 (c)(2), which refer to the 
RFP requirements as applying until the ``attainment date'', since, 
section 189(c)(1) defines RFP by reference to section 171(1) of the 
Act. Reference to section 171(1) clarifies that, as with the general 
RFP requirements in section 172(c)(2) and the ozone-specific 
requirements of section 182(b)(1) and 182(c)(2), the PM-specific 
requirements may only be required ``for the purpose of ensuring 
attainment of the applicable national ambient air quality standard 
by the applicable date.'' 42 U.S.C. section 7501(1). As discussed in 
the text of this rulemaking, EPA interprets the RFP requirements, in 
light of the definition of RFP in section 171(1), and incorporated 
in section 189(c)(1), to be a requirement that no longer applies 
once the standard has been attained.
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    With respect to the attainment demonstration requirements of 
section 189(a)(1)(B), an analogous rationale leads to the same result. 
Section 189(a)(1)(B) requires that the plan provide for ``a 
demonstration (including air quality modeling) that the [SIP] will 
provide for attainment by the applicable attainment date. * * *'' As 
with the RFP requirements, if an area is already monitoring attainment 
of the standard, EPA believes there is no need for an area to make a 
further submission containing additional measures to achieve 
attainment. This is also consistent with the interpretation of the 
section 172(c) requirements provided by EPA in the General Preamble, 
the Page memo, and the section 182(b) and (c) requirements set forth in 
the Seitz memo. As EPA stated in the General Preamble, no other 
measures to provide for attainment would be needed by areas seeking 
redesignation to attainment since ``attainment will have been 
reached.'' (57 FR at 13564).
    Other SIP submission requirements are linked with these attainment 
demonstration and RFP requirements, and similar reasoning applies to 
them. These requirements include the contingency measure requirements 
of sections 172(c)(9) and 182(c)(9). We have interpreted the 
contingency measure requirements of sections 172(c)(9) and 182(c)(9) as 
no longer applying when an area has attained the standard because those 
``contingency measures are directed at ensuring RFP

[[Page 44924]]

and attainment by the applicable date.'' (57 FR at 13564); Seitz memo, 
pp. 5-6.
    Both sections 172(c)(1) and 189(a)(1)(C) require ``provisions to 
assure that reasonably available control measures'' (i.e., RACM) are 
implemented in a nonattainment area. The General Preamble, 57 FR at 
13560 (April 16, 1992), states that EPA interprets section 172(c)(1) so 
that RACM requirements are a ``component'' of an area's attainment 
demonstration. Thus, for the same reason the attainment demonstration 
no longer applies by its own terms, the requirement for RACM no longer 
applies. EPA has consistently interpreted this provision to require 
only implementation of potential RACM measures that could contribute to 
reasonable further progress or to attainment. General Preamble, 57 FR 
at 13498. Thus, where an area is already attaining the standard, no 
additional RACM measures are required.\5\ EPA is interpreting section 
189(a)(1)(C) consistent with its interpretation of section 172(c)(1).
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    \5\ The EPA's interpretation that the statute only requires 
implementation of RACM measures that would advance attainment was 
upheld by the United States Court of Appeals for the Fifth Circuit 
(Sierra Club v. EPA, 314 F.3d 735, 743-745 (5th Cir. 2002), and by 
the United States Court of Appeals for the D.C. Circuit (Sierra Club 
v. EPA, 294 F.3d 155, 162-163 (D.C. Cir. 2002)).
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    Here, as in both our Phase 2 Final Rule and ozone and 
PM2.5 clean data memoranda, we emphasize that the suspension 
of a requirement to submit SIP revisions concerning these RFP, 
attainment demonstration, RACM, and other related requirements exists 
only for as long as a nonattainment area continues to monitor 
attainment of the standard. If such an area experiences a violation of 
the NAAQS, the basis for the requirements being suspended would no 
longer exist. Therefore, the area would again be subject to a 
requirement to submit the pertinent SIP revision or revisions and would 
need to address those requirements. Thus, a determination that an area 
need not submit one of the SIP submittals amounts to no more than a 
suspension of the requirements for so long as the area continues to 
attain the standard. However, once EPA ultimately redesignates the area 
to attainment, the area will be entirely relieved of these requirements 
to the extent the maintenance plan for the area does not rely on them.
    Therefore, we believe that, for the reasons set forth here and 
established in our prior ``clean data'' memoranda and rulemakings, a 
PM10 nonattainment area that has ``clean data,'' should be 
relieved of the part D, subpart 4 obligations to provide an attainment 
demonstration pursuant to section 189(a)(1)(B), the RACM provisions of 
section 189(a)(1)(C), and the RFP provisions established by section 
189(c)(1) of the Act, as well as the aforementioned attainment 
demonstration, RACM, RFP and contingency measure provisions of part D, 
subpart 1 contained in section 172 of the Act.\6\
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    \6\ In prior rulemakings involving the Clean Data Policy and 
PM10, EPA has applied criteria in addition to that of 
attainment of the standard. See, e.g., 67 FR 43020 (June 26, 2002). 
EPA does not believe that those additional criteria are required by 
statute or are necessary for application of the policy for 
PM10 areas, and does not employ them in applying the 
policy to ozone and PM2.5 areas. EPA intends to make its 
application of the policy consistent for ozone, PM10, and 
PM2.5, and does not intend to require an area to meet 
additional criteria for PM10.
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    Should EPA at some future time determine that an area that had 
clean data, but which has not yet been redesignated as attainment for a 
NAAQS, has violated the relevant standard, the area would again be 
required to submit the pertinent requirements under the SIP for the 
area. Attainment determinations under the policy do not shield an area 
from other required actions, such as provisions to address pollution 
transport.
    As set forth above, EPA finds that because the Rillito area has 
continued to attain the NAAQS, the requirement of an attainment 
demonstration, reasonable further progress, reasonably available 
control measures and contingency measures no longer applies for so long 
as the area continues to monitor attainment of the PM10 
NAAQS. If measurements of ambient PM10 concentration in the 
Rillito area reveal a violation of the PM10 NAAQS, then the 
State of Arizona would again be required to submit the pertinent CAA 
requirements for this nonattainment area.\7\
---------------------------------------------------------------------------

    \7\ Note, however, that on January 17, 2006, EPA published 
proposed revisions to the NAAQS for particulate matter. See http://www.epa.gov/fedrgstr/EPA-AIR/2006/January/Day-17/.
 The proposed 

revisions address two categories of particulate matter: fine 
particles which are particles 2.5 micrometers in diameter and 
smaller; and ``inhalable coarse'' particles which are particles 
between 2.5 and 10 micrometers (PM10-2.5). Upon 
finalization of a primary 24-hour standard for PM10-2.5, 
EPA proposes to revoke the current 24-hour PM10 standard 
in all areas of the country except in areas where there is at least 
one monitor located in an urbanized area (as defined by the U.S. 
Bureau of the Census) with a minimum population of 100,000 that 
violates the current 24-hour PM10 standard based on the 
most recent three years of data. In addition, EPA proposes to revoke 
the current annual PM10 standard upon finalization of a 
primary 24-hour standard for PM10-2.5.
---------------------------------------------------------------------------

IV. EPA's Final Action

    Based on quality-assured data meeting the requirements of 40 CFR 
part 50, appendix K, we find that the Rillito, Arizona nonattainment 
area attained the PM10 NAAQS by the applicable attainment 
date (1994) and is currently attaining the standard. This action is not 
a redesignation to attainment under CAA section 107(d)(3) because we 
have not yet approved a maintenance plan as meeting the requirements of 
section 175A of the CAA or determined that the area has met the other 
CAA requirements for redesignation. The classification and designation 
status in 40 CFR part 81 will remain moderate nonattainment for this 
area until such time as Arizona meets the CAA requirements for 
redesignation of the Rillito area to attainment. See footnote 7.
    EPA also finds that, because the Rillito area has continued to 
attain the NAAQS, the following CAA requirements no longer apply: The 
part D, subpart 4 obligations to provide an attainment demonstration 
pursuant to section 189(a)(1)(B), the RACM provisions of 189(a)(1)(C), 
the RFP provisions established by section 189(c)(1), and the attainment 
demonstration, RACM, RFP and contingency measure provisions of part D, 
subpart 1 contained in section 172 of the Act.
    Lastly, under CAA section 110(k)(6), we are correcting the entry 
for the Rillito moderate PM10 nonattainment area in the 
``Arizona--PM-10'' table in 40 CFR 81.303 so that it is identified as a 
subarea within Pima County instead of Santa Cruz County.
    We are publishing this rule without prior proposal because the 
Agency views this as a noncontroversial action and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal should adverse comments be filed. This 
action will be effective October 10, 2006, without further notice 
unless the EPA receives relevant adverse comments by September 7, 2006.
    If we receive such comments, then we will publish a document 
withdrawing the final rule and informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. We will not 
institute a second comment period. Parties interested in commenting 
should do so at this time. If no such comments are received, the public 
is advised that this rule will be effective on October 10,

[[Page 44925]]

2006 and no further action will be taken on the proposed rule.

V. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely makes a determination based on air quality data and does not 
impose any additional requirements. Accordingly, the Administrator 
certifies that this rule will not have a significant economic impact on 
a substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). Because this rule does not impose any 
additional enforceable duty, it does not contain any unfunded mandate 
or significantly or uniquely affect small governments, as described in 
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 97249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action merely makes a determination 
based on air quality data and does not alter the relationship or the 
distribution of power and responsibilities established in the CAA. This 
rule also is not subject to Executive Order 13045 ``Protection of 
Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it is not economically significant.
    The requirements of section 12(d) of the National Technology 
Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. 
This rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by October 10, 2006. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action may not be challenged later in proceedings to enforce its 
requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control, National parks, 
Wilderness areas.

    Dated: July 25, 2006.
Wayne Nastri,
Regional Administrator, Region 9.

0
Part 81, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 81--[AMENDED]

0
1. The authority citation for part 81 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart C--[Amended]

0
2. In Sec.  81.303, the table entitled ``Arizona--PM-10'' is amended by 
revising the entries for Santa Cruz County and Pima County to read as 
follows:


Sec.  81.303  Arizona.

* * * * *

                                                 Arizona.--PM-10
----------------------------------------------------------------------------------------------------------------
                                                  Designation                          Classification
          Designated area           ----------------------------------------------------------------------------
                                        Date                Type               Date               Type
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
Santa Cruz County:
    Nogales planning area..........    11/15/90  Nonattainment............    11/15/90  Moderate.
        The portions of the
         following Townships which
         are within the State of
         Arizona and lie east of
         111 degrees longitude:
         T23S, R13E, T23S, R14E,
         T24S, R13E, T24S, R14E
Pima County:
    Rillito planning area..........    11/15/90   Nonattainment...........    11/15/90  Moderate.
        Townships: T11S, R9E, T11S,
         R10E, T11S, R11E, T11S,
         R12E, T12S, R8E, T12S,
         R9E, T12S, R10E, T12S,
         R11E, T12S, R12E
    Ajo planning area..............    11/15/90  Nonattainment............    11/15/90  Moderate.
        Township T12S, R6W, and the
         following sections of
         Township T12S, R5W:
            a. Sections 6-8
            b. Sections 17-20, and
            c. Sections 29-32

                                                  * * * * * * *
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 [FR Doc. E6-12756 Filed 8-7-06; 8:45 am]

BILLING CODE 6560-50-P
