[Federal Register Volume 76, Number 7 (Tuesday, January 11, 2011)]
[Rules and Regulations]
[Pages 1532-1535]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-221]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[EPA-R09-OAR-2010-0718; FRL-9250-1]
Determinations of Attainment by the Applicable Attainment Date
for the Hayden, Nogales, Paul Spur/Douglas PM10
Nonattainment Areas, Arizona
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is making final determinations that the Hayden, Nogales,
and Paul Spur/Douglas nonattainment areas in Arizona attained the
National Ambient Air Quality Standard (NAAQS) for particulate matter
with an aerodynamic diameter of less than or equal to a nominal ten
micrometers (PM10) by their applicable attainment dates of
December 31, 1994. On the basis of these determinations, EPA concludes
that these three ``moderate'' nonattainment areas are not subject to
reclassification by operation of law to ``serious.'' EPA is not
finalizing determinations with respect to the air quality in these
areas subsequent to their 1994 attainment dates.
DATES: Effective Date: This rule is effective on February 10, 2011.
ADDRESSES: EPA has established docket number EPA-R09-OAR-2010-0718 for
this action. The index to the docket is available electronically at
http://www.regulations.gov and in hard copy at EPA Region IX, 75
Hawthorne Street, San Francisco, California. While all documents in the
docket are listed in the index, some information may be publicly
available only at the hard copy location (e.g., copyrighted material),
and some may not be publicly available in either location (e.g., CBI).
To inspect the hard copy materials, please schedule an appointment
during normal business hours with the contact listed in the FOR FURTHER
INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Wienke Tax at telephone number: (415)
947-4192; e-mail address: [email protected], or the above EPA, Region
IX address.
SUPPLEMENTARY INFORMATION: Throughout this document, wherever ``we'',
``us'' or ``our'' are used, we mean EPA. Information is organized as
follows:
Table of Contents
I. Context for Today's Actions
II. Summary of Proposed Actions
III. Public Comments and EPA Responses
IV. Final Action
V. Statutory and Executive Order Reviews
I. Context for Today's Actions
On November 2, 2010 (75 FR 67220), we published a direct final rule
that made certain determinations we are making in this document. On
November 2, 2010 (75 FR 67303), we also published a corresponding
proposed rule in the event that we received adverse comment leading us
to withdraw the direct final rule. In our direct final rule, we
indicated that we would withdraw the direct final rule if we received
adverse comments, and address public comments in a subsequent final
rule based on the proposed rule. On November 3, 2010, we received
adverse comments, and subsequently withdrew the direct final rule (75
FR 72964, November 29, 2010). Today, we take final action based on our
November 2, 2010 proposed rule and our consideration of the public
comments received.
II. Summary of Proposed Actions
In our November 2, 2010 proposed rule, we proposed to determine,
pursuant to section 188(b)(2) of the Clean Air Act, that three Arizona
``moderate'' PM10 nonattainment areas (Hayden, Nogales, and
Paul Spur/Douglas) had attained the PM10 NAAQS by the
applicable attainment date (December 31, 1994), and that, based on
these proposed determinations, we concluded that none of these areas is
subject to reclassification to serious by operation of law. We also
proposed to find that more recent data for 2007-2009 show none of the
areas is currently attaining the standard. More detailed information is
contained in the November 2 direct final rule, which is summarized in
the paragraphs that follow.
First, our direct final rule described the relevant NAAQS, 150
micrograms per cubic meter ([micro]g/m\3\), 24-hour average, against
which monitored ambient concentrations of PM10 in the three
subject areas (Hayden,\1\ Nogales,\2\
[[Page 1533]]
and Paul Spur/Douglas \3\) are to be compared in evaluating whether the
areas attained the standard. Next, we described the designations and
classifications of these three areas, all of which are classified as
``moderate'' nonattainment with an applicable attainment date of
December 31, 1994 under CAA section 188(c). Also, we discussed the
status of the various air quality plans submitted by the State of
Arizona to address moderate area PM10 requirements in the
three subject areas (Hayden, Nogales, Paul Spur/Douglas).
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\1\ The Hayden planning area straddles Gila and Pinal counties
at the confluence of the Gila and San Pedro rivers in east central
Arizona. The nonattainment area covers roughly 700 square miles of
mountainous terrain. Cities and towns within this area include
Kearney (population roughly 2,800), Hayden (population roughly 800),
and Winkelman (population roughly 400).
\2\ The Nogales planning area covers approximately 70 square
miles along the border with Mexico within Santa Cruz County. The
only significant population center in this area is the city of
Nogales with a population of roughly 21,000. The population of
Nogales, Mexico, which lies just across the border from Nogales,
Arizona is roughly 160,000.
\3\ The Paul Spur/Douglas planning area covers approximately 220
square miles along the border with Mexico within Cochise County.
Cities and towns within this area include Douglas (population
roughly 20,000) and Pirtleville (population roughly 1,500). The
population of Agua Prieta, Mexico, which lies just across the border
from Douglas is roughly 70,000.
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In our direct final rule, we also described how EPA makes
attainment determinations. As explained therein, the 24-hour
PM10 standard is attained when the expected number of days
per calendar year with a 24-hour concentration in excess of the
standard (referred to herein as an ``exceedance''), as determined in
accordance with 40 CFR part 50, appendix K, is equal to or less than
one.\4\ See 40 CFR 50.6 and 40 CFR part 50, appendix K. Generally, EPA
determines whether an area's air quality is meeting the PM10
NAAQS based upon complete (minimum of 75 percent of scheduled
PM10 samples recorded in each quarter), quality-assured data
gathered at established state and local air monitoring stations (SLAMS)
and national air monitoring stations (NAMS) in the nonattainment area
and entered into the EPA Air Quality System (AQS) database. Attainment
of the 24-hour PM10 standard is determined by calculating
the expected number of exceedances of the standard in a year. The 24-
hour PM10 standard is attained when the expected number of
exceedances averaged over a three-year period is less than or equal to
one at each monitoring site within the nonattainment area. Generally,
three consecutive years of air quality data are required to show
attainment of the 24-hour PM10 standard. See 40 CFR part 50
and appendix K.
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\4\ An exceedance is defined as a daily value that is above the
level of the 24-hour standard (150 [micro]g/m\3\) after rounding to
the nearest 10 [micro]g/m\3\ (i.e., values ending in 5 or greater
are to be rounded up). Thus, a recorded value of 154 [micro]g/m\3\
would not be an exceedance since it would be rounded to 150
[micro]g/m\3\ whereas a recorded value of 155 [micro]g/m\3\ would be
an exceedance since it would be rounded to 160 [micro]g/m\3\. See 40
CFR part 50, appendix K, section 1.0.
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Based on the available monitoring data for the 1992-1994 period
collected in the three subject Arizona nonattainment areas (Hayden,
Nogales,\5\ and Paul Spur/Douglas) and the application of the
PM10 NAAQS attainment criteria described above, we proposed
to determine that all three areas attained the PM10 NAAQS by
the December 31, 1994 attainment date for ``moderate'' areas, and thus,
are not subject to reclassification to ``serious'' by operation of law
under CAA section 188(b)(2). In addition, we proposed to find that,
although the three areas attained the standard by the applicable
attainment date, none appears to be currently attaining based on the
most recent available data, although Hayden appears likely to attain in
the near future if current trends continue. We indicated that we plan
to address the PM10 needs for Nogales and Paul Spur/Douglas
areas over the next few years. In today's action, EPA is not finalizing
any of the proposed determinations with respect to recent data.
Instead, we plan to further assess recent data, including data
available for 2010 and 2011, in the context of future rulemaking
actions on the submitted, but not yet approved, air quality plans for
these areas. Section 188(b)(2) obligates EPA to make a determination
only as to whether these areas have attained by their applicable 1994
attainment dates, and we are not required by that section to make
determinations regarding subsequent time periods. Other portions of the
Clean Air Act authorize EPA to address current air quality issues as
needed through separate statutory authority and mechanisms.
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\5\ Table 2 (``Summary of PM10 Monitoring Data,
Nogales Nonattainment Area, 1992-1994''), as published in our
November 2, 2010 direct final rule, contains a publisher's error
that erroneously combines certain columns and rows and thereby
causes a mismatch between concentrations and the corresponding years
in which they were monitored. The correct values for the highest 24-
hour PM10 concentrations ([micro]g/m\3\) are 153 in 1992,
119 for 1993, and 116 for 1994 from the Nogales Post Office monitor.
Also, the maximum concentrations shown for the other three monitors
located in Nogales were collected in 1994, not 1993. These errors do
not appear in the version of the direct final rule that was signed
by the EPA Region IX Regional Administrator. In any event, these
errors would not have affected the outcome of our attainment
determinations since none of the values for any of the years
exceeded 154 [micro]g/m\3\.
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Please see our November 2, 2010 direct final rule for more
information about our proposal of the same date.
III. Public Comments and EPA Responses
As noted previously, we published a proposed rule (75 FR 67303) on
November 2, 2010. We received comments from WildEarth Guardians
(``WildEarth''), dated November 3, 2010, challenging EPA's
interpretation of CAA section 188(b)(2) that limits reclassifications
by operation of law to the air quality conditions as of the applicable
attainment date.
Comment: WildEarth contends that section 188(b)(2) of the Clean Air
Act does not state that the EPA is limited only to considering air
quality data up until the attainment date when it makes its finding,
but rather requires any moderate nonattainment area that fails to
attain ``after the applicable attainment date'' to be reclassified to
``serious'' regardless of whether EPA makes a timely finding.
WildEarth finds further support for its interpretation by noting
that CAA section 188(b)(2) uses both past-tense and present-tense
wording with regards to the context of EPA's assessment of an area's
attainment status. Specifically, the statute states that EPA's finding
``shall determine whether the area attained * * *'' (emphasis added),
but then states ``If the Administrator finds that any Moderate Area is
not in attainment * * *'' (emphasis added). WildEarth contends that use
of both the past-tense and present-tense in this context indicates
that, although the Clean Air Act intended EPA to assess an area's
attainment status based on whether it attained the NAAQS by the
attainment date, it also required that a moderate nonattainment area be
reclassified to ``serious'' if it ``is not in attainment'' at the time
the EPA makes its finding. If EPA's assessment were to be limited only
to whether an area ``attained'' in the past, WildEarth contends that it
would render meaningless the Clean Air Act's substantive requirement
that a moderate area be bumped up to ``serious'' if it ``is not in
attainment'' when EPA makes its finding. WildEarth contends that, as
such, EPA's interpretation reads a substantive provision out of the
Clean Air Act.
Response: First, we note that WildEarth does not object to any
aspect of EPA's proposed rulemaking other than the interpretation as to
the legal consequences that they contend would flow from finalizing
determinations that, although the three areas attained by their
applicable 1994 attainment dates, sixteen years later they are not
currently in attainment. First, we note that in today's rulemaking EPA
is not finalizing any proposed determinations with respect to the air
quality in these areas subsequent to the areas' applicable dates. Nor
does section 188(b)(2) impose such an obligation. Pursuant to section
[[Page 1534]]
188(b)(2), EPA is finalizing here its determinations that the areas
attained the standard ``by that [applicable attainment] date.'' Section
188(b)(2) does not impose upon EPA any obligation to make a final
determination of attainment except with respect to an area's applicable
attainment date.
Thus, it is not necessary for the purposes of our final actions
here, which are limited to determinations of attainment as of the
areas' applicable attainment dates, to respond to WildEarth's
assertions regarding the legal consequences of determinations regarding
air quality in subsequent decades. Nevertheless, we note our
disagreement with WildEarth's interpretation that CAA section 188(b)(2)
would require reclassification of any moderate PM10
nonattainment area if EPA were to make a final determination that the
area was not attaining after the applicable attainment date, regardless
of the air quality conditions as of the applicable attainment date
itself.
EPA's interpretation of section 188(b)(2) as requiring and
authorizing reclassification to serious based only on air quality
conditions as of the applicable attainment date, and not thereafter, is
confirmed by a reading of that section in its entirety:
Within 6 months following the applicable attainment date for a
PM-10 nonattainment area, the Administrator shall determine whether
the area attained the standard by that date. If the Administrator
finds that any Moderate Area is not in attainment after the
applicable attainment date--
(A) The area shall be reclassified by operation of law as a
Serious Area; and
(B) the Administrator shall publish a notice in the Federal
Register no later than 6 months following the attainment date,
identifying the area as having failed to attain and identifying the
reclassification described under subparagraph (A).
While the second sentence of section 188(b)(2) contains the
language quoted by WildEarth (``any Moderate Area is not in attainment
after the applicable attainment date''), it is clear that in the
context of the first sentence of the provision, which is the sentence
that establishes the duty to make an attainment determination, that the
duty is to ``determine whether the area attained the standard by that
date [referring to the phrase ``applicable attainment date'' in the
opening clause of the first sentence].'' Thus, EPA's duty is to
determine whether the area attained by its attainment date and the
language in the second sentence regarding a finding after the
attainment date may reasonably be interpreted as referring to the date
the finding is made, which would necessarily be after the attainment
date, not to the date used in the determination as the benchmark for
determining attainment.
Further, the second sentence of CAA section 188(b)(2), i.e., the
one that includes the language cited by WildEarth (``any Moderate Area
is not in attainment after the applicable attainment date''), includes
two subparagraphs, one of which provides for reclassification of a
moderate area to serious by operation of law and another that refers to
publication of a notice in the Federal Register six months after the
attainment date, identifying the area ``as having failed to attain''
that clearly relates back to the earlier, legally relevant attainment
date (in this case, December 31, 1994). Thus, whether EPA's obligation
under CAA section 188(b)(2) is viewed in its entirety, or whether the
second sentence of CAA section 188(b)(2) is viewed in isolation, it is
clear that the question of whether an area must be reclassified is
considered along with the question of whether an area has achieved
attainment by the attainment date.\6\ To accept WildEarth's
interpretation would be to ignore the reference to a specific point in
time (``no later than 6 months following the attainment date'') for
publishing a notice in subparagraph (B) of CAA section 188(b)(2) in
identifying the appropriate benchmark for reclassifying moderate areas
to serious under subparagraph (A).\7\
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\6\ EPA's sole obligation under CAA section 188(b)(2) is to
determine whether the three Arizona areas attained the
PM10 standard by the applicable attainment date, and
while the statute requires EPA to make this determination within six
months of the applicable attainment date, the applicable attainment
date (in this case, December 31, 1994) remains the same no matter
when EPA actually makes the determination. EPA was not obligated in
the November 2, 2010 proposed rule, nor in this final rule, to
determine whether the areas are attaining the standard at the
present time. As stated above, EPA is not here finalizing any
determinations as to the current air quality in the area, but is
merely noting what more recent monitoring data suggest about the
current air quality area quality in these areas, sixteen years after
the 1994 attainment dates that are the subject of the final
rulemaking here. We included the observations about current air
quality in our proposed rule because we believe that such
observations, and the related discussion of future Agency actions,
is of as much public interest, if not more, as are the
determinations of the air quality conditions that occurred sixteen
years ago.
\7\ While EPA believes that the plain language of section
188(b)(2) supports EPA's interpretation that reclassifications to
``serious'' are to be based only on air quality conditions as of the
applicable attainment date, and not thereafter, EPA believes that,
to the extent section 188(b)(2) is ambiguous, EPA's interpretation
is reasonable in that it is consistent with the statutory scheme for
SIP revisions upon findings of failure to attain under subpart 1 and
for mandatory reclassifications under subparts 2 and 3 for ozone and
carbon monoxide areas. See CAA sections 179(c) and (d), 181(b)(2)
and 186(b)(2) and compare the language from these sections to
section 188(b)(2). While the language for such SIP revisions under
subpart 1 and for reclassifications for ozone and carbon monoxide
areas under subparts 2 and 3 uses slightly different language to
link SIP revisions and reclassifications solely to air quality ``as
of the attainment date'' than the language for reclassification of
PM10 areas under subpart 4, we find no reason that
Congress would have established a different scheme for
PM10 areas under subpart 4 than generally applicable
under subpart 1 or for ozone or carbon monoxide areas under subparts
2 and 3. For further explanation of EPA's interpretation of
reclassification under the Clean Air Act, see the responses to
comments in EPA's final Determination of Attainment of 1-hour Ozone
Standard as of November 15, 1993 for the Birmingham, AL Marginal
Ozone Nonattainment Area (67 FR 67113, November 4, 2002). To the
extent relevant here, EPA reaffirms and incorporates by reference
the responses to comments contained in our November 4, 2002 final
rule.
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Commenter's interpretation of section 188(b)(2) fails to harmonize
the second sentence of the section with the first sentence and with the
sentences that follow. Indeed, it could more plausibly be argued that
the second sentence adds a cumulative condition for reclassification--
that is, an area will be reclassified if and only it fails to attain by
its attainment date and ``if the Administrator finds [the area] is not
in attainment after the applicable attainment date.'' Contrary to
commenter's contention, EPA does not believe that Congress intended for
the language regarding determining attainment as of the attainment date
not to apply when an attainment determination occurs more than six
months after the attainment date. The second sentence of section
188(b)(2) does not somehow override the language of the first sentence
and require reclassification if an area slips back into nonattainment
after its attainment date. EPA's reading is consistent with the
language of section 188(b)(2) and with other provisions of the Clean
Air Act, as well as with its structure and purpose. EPA believes that
other parts of the Act, notably section 110(k)(5), provide the means to
address nonattainment that occurs after an area's attainment date.
Contrary to commenter's contention, EPA's reading does not
``nullif[y]'' applicable text. Rather, EPA is properly reading
188(b)(2) as requiring EPA to determine whether an area has attained by
its attainment date, with reclassification as a consequence for areas
that fail to do so.
In the present case, the air quality data from the years 1992-1994
are the relevant data for determining whether the three Arizona areas
must be reclassified to serious because their applicable attainment
date is December 31, 1994, and because we have
[[Page 1535]]
determined that the areas did in fact attain by the applicable
attainment date, they are not subject to reclassification to serious by
operation of law under CAA section 188(b)(2).
This does not mean that the Clean Air Act provides no means to
address NAAQS violations in areas that had initially attained the
standard by the applicable attainment date but then experience
subsequent violations years after the applicable attainment date. For
example, EPA could issue a ``SIP call'' under CAA section 110(k)(5) if
EPA were to determine that the SIP is ``substantially inadequate'' to
attain the PM10 NAAQS in areas where violations of the
PM10 NAAQS occur after the applicable attainment date. Such
SIP calls require the State to revise the SIP as necessary to correct
the inadequacies. The SIP call, unlike reclassification, is capable of
addressing and correcting the specific circumstances causing
nonattainment sixteen years after the applicable attainment date. While
EPA has no current plans to issue SIP calls for any of the three
subject Arizona moderate PM10 nonattainment areas, EPA is
working with the State of Arizona to update the state's earlier-
submitted, but not yet EPA-approved air quality plans. EPA intends to
ensure that the plans meet all applicable requirements for moderate
PM10 nonattainment areas through both cooperative efforts
with the State and through subsequent EPA rulemaking actions on the
updated plans.
IV. Final Action
EPA has reviewed the comments that have been submitted, and
concluded that none of them convince us to change our action as
proposed on November 2, 2010 with respect to determinations of
attainment as of the applicable attainment date. Thus, under section
188(b)(2) of the Clean Air Act, and based on sufficient, quality-
assured data, we take final action to determine that the Hayden,
Nogales, and Paul Spur/Douglas PM10 nonattainment areas
attained the 24-hour PM10 NAAQS by the applicable attainment
date, December 31, 1994. On the basis of this determination, EPA
concludes that these three ``moderate'' nonattainment areas are not
subject to reclassification to ``serious'' by operation of law.
V. Statutory and Executive Order Reviews
This action merely make determinations based on air quality data
and does not impose any additional Federal requirements. For that
reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
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);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997); is not a significant regulatory action subject
to Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because it will not impose substantial direct costs on tribal
governments or preempt tribal law.
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 action 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 Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by March 14, 2011. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action 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,
Particulate matter, Wilderness areas.
Authority: 42 U.S.C. 7401 et seq.
Dated: December 30, 2010.
Jared Blumenfeld,
Regional Administrator, EPA Region IX.
[FR Doc. 2011-221 Filed 1-10-11; 8:45 am]
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