[Federal Register: August 11, 2004 (Volume 69, Number 154)]
[Proposed Rules]
[Page 48835-48837]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11au04-35]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[CA119-FFA; FRL-7800-4]
Finding of Failure To Attain; Imperial Valley Planning Area;
California; Particulate Matter of 10 Microns or Less
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is today proposing to find under the Clean Air Act (CAA)
that the Imperial Valley Planning Area (Imperial Valley) failed to
attain the National Ambient Air Quality Standards (NAAQS) for
particulate matter of 10 microns or less (PM-10) by the serious area
statutory deadline of December 31, 2001.
Separately in today's Federal Register, EPA is publishing its final
action in response to a recent Ninth Circuit Court order compelling EPA
to reclassify the Imperial Valley PM-10 nonattainment area from
moderate to serious because the area failed to meet the moderate area
attainment date of December 31, 1994.
The proposed finding of failure to attain the serious area
attainment date of December 31, 2001, is based on monitored air quality
data for the PM-10 NAAQS from January 1999 through December 2001. If
EPA takes final action finding that Imperial Valley failed to attain,
the State of California must submit within one year of publication of
the final action, a plan that provides for attainment of the PM-10
NAAQS and that achieves at least 5 percent annual reductions in PM-10
or PM-10 precursor emissions as required by CAA section 189(d).
DATES: Comments on this proposed action must be received by September
10, 2004.
ADDRESSES: Send comments to David Wampler, Planning Office (AIR-2),
U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street,
San Francisco, CA 94105-3901 or e-mail to wampler.david@epa.gov, or
submit comments at http://www.regulations.gov.
You can inspect and copy the docket for this action at our Region
IX office during normal business hours (see address below). Due to
increased security, we suggest that you call at least 24 hours prior to
visiting the Regional Office so that we can make arrangements to have
someone meet you. The Federal Register notice is also available as an
electronic file on EPA's Region 9 Web page at http://www.epa.gov/region09/air
.
Planning Office (AIR-2), Air Division, U.S. Environmental
Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA
94105.
FOR FURTHER INFORMATION CONTACT: David Wampler, U.S. Environmental
Protection Agency, Region 9, Air Division, Planning Office (AIR-2), 75
Hawthorne Street, San Francisco, CA 94105; (415) 972-3975;
wampler.david@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, the words ``we,''
``us,'' or ``our'' mean U.S. EPA.
I. Background
Imperial County is located in the southeastern corner of
California. It has borders with Mexico to the south, Arizona to the
east, and San Diego County to the west. Most of Imperial County falls
within the Imperial Valley Planning Area (Imperial Valley). 40 CFR part
81. The local jurisdiction that is responsible for air pollution
control is the Imperial County Air Pollution Control District (ICAPCD).
Upon enactment of the Clean Air Act Amendments of 1990, Imperial
Valley was classified as a moderate PM-10 nonattainment area. The CAA
requires that moderate areas attain the PM-10 NAAQS by December 31,
1994. CAA section 188(c)(1). Moderate areas failing to attain the NAAQS
by the prescribed attainment date must be reclassified as serious under
CAA section 188(b)(2). However, CAA section 179(B)(d) provides that any
area that establishes to the satisfaction of EPA that it would have
attained the PM-10 NAAQS by the applicable attainment date but for
emissions emanating from outside the United States, is not subject to
the provisions of CAA section 182(b)(2), i.e., reclassification to
serious nonattainment.
In July 2001, ICAPCD and the California Air Resources Board (CARB)
submitted evidence that the Imperial Valley would have attained the PM-
10 NAAQS by the 1994 attainment date, but for transport from Mexico. On
October 19, 2001, EPA made a final finding that Imperial Valley would
have attained the PM-10 NAAQS by December 1994 but for PM-10 emissions
emanating from Mexico. 66 FR 53106.
The Sierra Club petitioned for review of our October 2001 final
action in the U.S. Court of Appeals for the Ninth Circuit. On October
9, 2003, the Court issued its opinion. Sierra Club v. United States
Environmental Protection Agency, et al., 352 F.3d 1186. The Court
rejected EPA's factual determination with respect to two days, January
19 and 25, 1993, on which PM-10 exceedances of the 24-Hour PM-10 NAAQS
occurred, finding that ``[b]ased on the data and the reports in the
record, there simply is no possibility that Mexican transport could
have caused the observed PM-10 exceedances * * * .'' The effect of this
conclusion is that Imperial Valley had exceedances of the PM-10 NAAQS
that preclude a finding that the area would have attained the NAAQS by
1994. The Court, concluding that further administrative proceedings
with respect to the 1994 exceedances would serve no useful purpose,
instructed EPA to reclassify Imperial Valley as a serious PM-10
nonattainment area.
On December 18, 2003, the Ninth Circuit denied a petition for
rehearing by ICAPCD, an intervener in the case, slightly revised its
October 9, 2003, opinion, and granted ICAPCD's motion to stay the
mandate until March 17, 2004, to permit ICAPCD to file a petition for a
writ of certiorari in the U.S. Supreme Court. Imperial County did so on
March 17, 2004. On June 21, 2004, the Supreme Court declined to hear
the case. Imperial County Air Pollution Control District v. Sierra
Club, et al., 72 U.S.L.W. 3757. Thereafter the stay was lifted and the
mandate issued.
Accordingly, elsewhere in today's Federal Register, EPA is
publishing its final action in response to the Ninth Circuit's October
9, 2003, opinion, finding that Imperial Valley failed to attain the PM-
10 NAAQS by the moderate area statutory deadline of December 31, 1994,
and reclassifying the area from moderate to serious. All serious PM-10
nonattainment areas were required to attain the standards by no later
than December 31, 2001, unless granted a one-time extension of up to
five years. CAA section 188(c)(2) and (e).
[[Page 48836]]
II. Proposed Finding of Failure To Attain by December 31, 2001
A. Clean Air Act Requirements
EPA has the responsibility, pursuant to CAA sections 179(c) and
188(b)(2), of determining within 6 months of the applicable attainment
date (i.e., by June 30, 2002) whether Imperial Valley attained the
annual and 24-hour NAAQS. Because June 30, 2002, has passed, EPA must
make that determination as soon as practicable. Delaney v. EPA, 898
F.2d 687 (9th Cir. 1990).
Section 179(c)(1) of the Act provides that determinations of
failure to attain are to be based upon an area's ``air quality as of
the attainment date,'' and section 188(b)(2) is consistent with this
requirement. EPA determines whether an area's air quality is meeting
the PM-10 NAAQS based upon air quality data gathered at monitoring
sites in the nonattainment area and entered into EPA's Air Quality
System Database (AQS Database). These data are reviewed to determine
the area's air quality status in accordance with EPA regulations at 40
CFR part 50, appendix K.
Pursuant to appendix K, attainment of the annual PM-10 NAAQS is
achieved when the expected annual arithmetic mean PM-10 concentration
at each monitoring site in the area is less than or equal to the level
of the standard (50 [mu]g/m\3\). Attainment of the 24-hour PM-10 NAAQS
is achieved when the expected number of exceedances of the 24-hour
NAAQS (150 [mu]g/m\3\) per year at each monitoring site is less than or
equal to one. A total of three consecutive years of clean air quality
data is generally necessary to show attainment of the annual and 24-
hour standards for PM-10. A complete year of air quality data, as
referred to in 40 CFR part 50, appendix K, is comprised of all four
calendar quarters with each quarter containing data from at least 75
percent of the scheduled sampling days.
B. Ambient Air Monitoring Data
The ambient air quality network in Imperial Valley consists of PM-
10 monitoring stations throughout the Valley. For a map with locations
of the current monitors please see: http://www.arb.ca.gov/aqd/namslams/ss.pdf.
In general, PM-10 data from these monitoring stations are
collected on a regular basis and reported to our AQS Database.
1. Annual PM-10 Standard
According to data in the AQS database, three monitoring sites in
the Imperial Valley were in violation of the annual PM-10 NAAQS for the
time period leading up to the serious area attainment date--January 1,
1999, through December 31, 2001. Data for these monitors during the
three-year period are listed in Table 1 below. 40 CFR part 50 states
that the annual PM-10 standard is met when the annual arithmetic mean
concentration is less than or equal to 50 micrograms per cubic meter
([mu]g/m\3\). The expected annual arithmetic mean is determined by
averaging the annual arithmetic mean PM-10 concentration for the three
years preceding the attainment date (in this case 1999 through 2001).
The procedure for calculating arithmetic mean is discussed in 40 CFR
part 50 appendix K, section 4.0.
Table 1.--Imperial Valley Monitoring Sites That Violate the Annual PM-10
NAAQS (1999-2001)
------------------------------------------------------------------------
3-year
annual
Site name average
([mu]g/
m\3\)
------------------------------------------------------------------------
Calexico, Ethel Street......................................... 81
Calexico, Grant Street......................................... 85
Westmorland.................................................... 52
------------------------------------------------------------------------
2. 24-Hour PM-10 Standard
In addition to violations of the annual PM-10 NAAQS, data from six
monitors located in Imperial Valley show violations of the 24-hour PM-
10 NAAQS. According to 40 CFR part 50, the 24-hour PM-10 NAAQS is
attained when the expected number of days per calendar year with a 24-
hour average above 150 [mu]g/m\3\ is equal to or less than one. In the
simplest case, the number of expected exceedances at a site is
determined by recording the number exceedances in each calendar year
and then averaging them over the past three calendar years. This means
that if a monitoring site has four or more observed or estimated
exceedances in a three-year period then it is in violation of the 24-
hour PM-10 NAAQS. Generally, if PM-10 sampling is scheduled less than
every day, EPA requires the adjustment of observed exceedances to
account for days for which a sample was not collected. The method for
adjusting the observed exceedances to determine the estimated
exceedances for a year is described in 40 CFR part 50, appendix K,
section 3.1.
The six monitoring sites in Imperial Valley that were in violation
of the 24-hour PM-10 NAAQS during the calendar years 1999 through 2001
are listed below in Table 2 along with the number of estimated 24-hour
exceedances at each site for each year and the average number of
expected exceedance days per year during the three-year period. All of
the sites listed in Table 2 operate on a one-in-six day schedule. For
each of these sites, the average number of expected exceedance days per
year over the three-year period 1999-2001 exceeds one.
Table 2.--24-hour PM-10 Estimated Exceedances in the Imperial Valley Nonattainment Area (1999 Through 2001)
----------------------------------------------------------------------------------------------------------------
Average
number of
Estimated Estimated Estimated expected
Monitoring station exceedance exceedance exceedance exceedance
days 1999 days 2000 days 2001 days per
year 1999-
2001
----------------------------------------------------------------------------------------------------------------
Calexico, Grant Street.......................................... 31.7 37.9 12 27.2
Calexico, Ethel St.............................................. 12.9 30 18 20.3
Niland.......................................................... 0 12.9 6.4 6.4
Brawley......................................................... 0 6.9 0 2.3
Westmorland..................................................... 0 12.8 6 6.3
El Centro....................................................... 0 6 6.4 4.1
----------------------------------------------------------------------------------------------------------------
[[Page 48837]]
III. Proposed Action
EPA is proposing to find that Imperial Valley did not attain the
annual or 24-hour PM-10 NAAQS by the December 31, 2001 attainment date
as discussed in section II above.
Pursuant to CAA section 189(d), serious PM-10 nonattainment areas
that fail to attain are required to submit ``plan revisions which
provide for attainment of the PM-10 air quality standards \1\ and, from
the date of such submission until attainment, for an annual reduction
in PM-10 or PM-10 precursor emissions within the area of not less than
5 percent of the amount of such emissions as reported in the most
recent inventory prepared for such area.'' Among other things, the plan
revision must also provide for the expeditious implementation of best
available control measures (BACM) pursuant to CAA section 189(b)(1)(B).
Under section 189(d) the applicable submittal deadline for the plan
revision is within 12 months of the applicable attainment date. Since
that date, December 31, 2002, has passed, the plan revision is due
within one year of publication of a final finding of nonattainment
pursuant to CAA section 179(d).
---------------------------------------------------------------------------
\1\ Under section 179B(a), the attainment demonstration in any
future PM-10 plan submitted by the State for Imperial Valley may be
based on a showing of attainment but for emissions emanating from
Mexico. EPA's prior action under section 179(B)(d) and the Ninth
Circuit's recent decision were based on evaluation of 1992-1994 data
and do not preclude the State from pursuing a future 179B(a)
demonstration, if applicable.
---------------------------------------------------------------------------
IV. Administrative Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed 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 proposed 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 proposed action in and of itself establishes
no new requirements, it merely notes that the air quality in Imperial
Valley did not meet the Federal health standards for PM-10 by the CAA
deadline. Accordingly, the Administrator certifies that this proposed
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 proposed rule does not in and of itself
establish new requirements, EPA believes that it is questionable
whether a requirement to submit a SIP revision constitutes a Federal
mandate. The obligation for a State to revise its SIP arises out of
sections 110(a), 179(d), and 189(d) of the CAA and is not legally
enforceable by a court of law, and at most is a condition for continued
receipt of highway funds. Therefore, it is possible to view an action
requiring such a submittal as not creating any enforceable duty within
the meaning of section 421(5)(9a)(I) of the Unfunded Mandates Reform
Act (UMRA) of 1995 (2 U.S.C. 658(a)(I)). Even if it did, the duty could
be viewed as falling within the exception for the condition of Federal
assistance under section 421(5)(a)(i)(I) of UMRA (2 U.S.C.
658(5)(a)(i)(I)). Therefore, today's proposed action 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 67249, November 9, 2000). This proposed 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 proposed
action does not in and of itself create any new requirements and does
not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. This proposed 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. Because this
proposed finding of failure to attain is a factual determination based
on air quality considerations, 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 proposed 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.).
List of Subjects in 40 CFR Part 81
Environmental protection, Air pollution control, National Parks,
Wilderness areas.
Authority: 42 U.S.C. 7401-7671q.
Dated: August 3, 2004.
Wayne Nastri,
Regional Administrator, Region IX.
[FR Doc. 04-18379 Filed 8-10-04; 8:45 am]
BILLING CODE 6560-50-P