[Federal Register Volume 64, Number 122 (Friday, June 25, 1999)]
[Proposed Rules]
[Pages 34173-34179]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-16227]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA-221-158; FRL-6366-6]


Approval and Promulgation of Implementation Plans; California--
Owens Valley Nonattainment Area; PM-10

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve the State Implementation Plan 
(SIP) submitted by the State of California for attaining the 
particulate matter (PM-10) national ambient air quality standards 
(NAAQS) in the Owens Valley Planning Area, along with the State's 
request for an extension to December 31, 2006 to attain the PM-10 NAAQS 
in the area.

[[Page 34174]]

EPA is proposing to approve the SIP revision and extension request 
under provisions of the Clean Air Act (CAA) regarding EPA action on SIP 
submittals, SIPs for national primary and secondary standards, and plan 
requirements for nonattainment areas.

DATES: Written comments on this proposal must be received by July 9, 
1999.

ADDRESSES: Comments should be addressed to the EPA contact below. 
Copies of the State's submittal and other information are contained in 
the docket for this rulemaking. The docket is available for inspection 
during normal business hours at the following location:
    U. S. Environmental Protection Agency, Region 9, Air Division, 75 
Hawthorne Street, San Francisco, CA 94105-3901.
    Copies of the SIP materials are also available for inspection at 
the addresses listed below:
    California Air Resources Board, 2020 L Street, P.O. Box 2815, 
Sacramento, CA 95814.
    Great Basin Unified Air Pollution Control District, 157 Short 
Street, Suite 6, Bishop, CA 93514.

FOR FURTHER INFORMATION CONTACT: Larry Biland, U. S. Environmental 
Protection Agency, Region 9, Air Division (AIR-2), 75 Hawthorne Street, 
San Francisco, CA 94105-3901, (415) 744-1227.

Supplementary Information:

I. Background

A. Executive Summary

1. The Particulate Matter Problem in Owens Valley
    Owens Lake is located in Inyo County in eastern-central California. 
The lake is part of a chain of lakes formed during the late Pleistocene 
Epoch. In 1913, the Los Angeles Department of Water and Power (LADWP) 
completed an aqueduct system and began diverting the waters of the 
Owens River to the City of Los Angeles. By 1930, these diversions had 
drained Owens Lake almost completely dry.
    Strong winds over the dry, alkaline bed of Owens Lake have produced 
among the highest measured concentrations of PM-10 ever recorded, more 
than 25 times the federal 24-hour standard. 1 Analysis of 
meteorological data and PM-10 samples in the Owens Valley Planning Area 
during days when violations are recorded shows that 94 percent of PM-10 
concentrations come from the Owens Lake bed and another 5 percent come 
from reentrained Owens Lake dust already deposited in the area. Annual 
PM-10 emissions from Owens Lake may exceed 400,000 tons, and dust 
transport from the Lake can result in violations of the 24-hour PM-10 
NAAQS more than 40 miles to the South. 2
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    \1\ EPA revised the NAAQS for particulate matter on July 1, 1987 
(52 FR 24672), replacing standards for total suspended particulates 
with new standards applying only to particulate matter up to 10 
microns in diameter (PM-10). At that time, EPA established two PM-10 
standards. The annual PM-10 standard is attained when the expected 
annual arithmetic mean of the 24-hour samples averaged over a 3-year 
period does not exceed 50 micrograms per cubic meter (ug/m3). The 
24-hour PM-10 standard of 150 ug/m3 is attained if samples taken for 
24-hour periods have no more than one expected exceedance per year, 
averaged over 3 years. See 40 CFR 50.6 and 40 CFR part 50, appendix 
K.
    On July 18, 1997, EPA reaffirmed the annual PM-10 standard, and 
slightly revised the 24-hour PM-10 standard (62 FR 38651). In the 
same action, EPA also established two new standards for PM, both 
applying only to particulate matter up to 2.5 microns in diameter 
(PM-2.5).
    This SIP submittal addresses the 24-hour and annual PM-10 
standards as originally promulgated. A recent opinion issued by the 
U.S. Court of Appeals for the D.C. Circuit in American Trucking 
Assoc., Inc., et al. v. USEPA, No. 97-1440 (May 14, 1999), among 
other things, vacated the new standards for PM-10 that were 
published on July 18, 1997 and became effective September 16, 1997. 
However, the PM-10 standards promulgated on July 1, 1987 were not an 
issue in this litigation, and the Court's decision does not affect 
the applicability of those standards in this area. Codification of 
those standards continues to be recorded at 40 CFR 50.6. In the 
notice promulgating the new PM-10 standards, the EPA Administrator 
decided that the previous PM-10 standards that were promulgated on 
July 1, 1987, and provisions associated with them, would continue to 
apply in areas subject to the 1987 PM-10 standards until certain 
conditions specified in 40 CFR 50.6(d) are met. See 62 FR 38701. EPA 
has not taken any action under 40 CFR 50.6(d) for the Owens Valley 
Planning Area.
    \2\ Owens Valley PM-10 Planning Area Demonstration of Attainment 
State Implementation Plan (``1998 SIP''), pp. S-5 and S-3.
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    Approximately 40,000 permanent residents live in the area affected 
by Owens Lake particulate emissions. Included in this number are 
members of 4 tribes: the Lone Pine Paiute/Shoshone Tribe, the Fort 
Independence Tribe, the Big Pine Tribe, and the Bishop Tribe. Residents 
and visitors to the area suffer the health effects from high PM-10 
concentrations, including lung damage, increased respiratory disease, 
and premature death. Children, the elderly, and people suffering from 
heart and lung disease, such as asthma, are especially at risk. 
Moreover, the dust from the lake bed contains carcinogenic compounds, 
including arsenic, nickel, and cadmium. 3
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    \3\ 1998 SIP, pp. S-3 and 3-12.
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    Elevated levels of Owens Valley particulate matter harm visibility 
and vegetation as far as 150 miles away. Included in the impact area 
are 3 national parks (Death Valley, Kings Canyon, and Sequoia), 4 
wilderness areas (Domeland, Golden Trout, John Muir, and South Sierra), 
1 national historic site (Manzanar), and 2 national forests (Inyo and 
Sequoia). Finally, Owens Lake dust events adversely affect operations 
at China Lake Naval Air Weapons Station, since many of the Navy's 
operations require good visibility. 4
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    \4\ 1998 SIP, pp. 3-13 through 3-15.
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2. The Owens Valley PM-10 Plan
    On November 16, 1998, after over a decade of planning, research, 
analysis, and negotiation, the Governing Board of the Great Basin 
Unified Air Pollution Control District (``the District'') unanimously 
adopted the 1998 Revision to the Owens Valley PM-10 Planning Area 
Demonstration of Attainment State Implementation Plan (``the 1998 SIP'' 
or ``the plan''). While the District was principally responsible for 
the plan, there were many participants in the planning process, 
including the California Air Resources Board (CARB), LADWP, the City of 
Los Angeles, the tribal governments, Federal land managers, the Navy, 
the State Lands Commission, and members of the public.
    In preparing the 1998 SIP, the District and the other plan 
participants confronted one of the most challenging air quality 
problems: how to reduce peak PM-10 concentrations from almost 4000 
micrograms per cubic meter (ug/m3) to the 24-hour NAAQS of 150 ug/m3. 
5 While the origin of the PM-10 problem was well 
understood--the draining of Owens Lake by the City of Los Angeles in 
the early part of this century, and continued LADWP withdrawals from 
Owens River--the solution to the problem, particularly over the 
relatively short time allowed under the CAA, proved controversial.
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    \5\ A 24-hour PM-10 concentration of 3,929 ug/m3 was recorded at 
Keeler on April 13, 1995 (1998 SIP, p. A1-27).
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    Among the unique complexities of the Owens Valley PM-10 planning 
process are the competing authorities and responsibilities of the 
District to protect Owens Valley residents from the harmful effects of 
air pollution and the City of Los Angeles to provide its residents with 
an adequate water supply.
    In 1983, the California Legislature attempted to resolve these 
contentious issues by enacting Senate Bill 270 (California Health and 
Safety Code section 42316). This law has the following provisions:
    (a) it exempts water-gathering operations from State air quality 
permit regulations;

[[Page 34175]]

    (b) it provides that the City of Los Angeles must fund control 
measure development and must implement reasonable measures ordered by 
the District to mitigate the impacts of its water diversion activities 
at Owens Lake, on the basis of substantial evidence establishing that 
the City's activities cause or contribute to violations of federal or 
State air quality standards;
    (c) it prevents the District from mandating measures that affect 
the City's right to produce, divert, store, or convey water; and
    (d) it provides opportunities for the City to appeal to CARB any 
measures or fees imposed by the District.
    Before settling on the 3 primary control measures in the plan, the 
District examined many strategies but found them not to be feasible or 
effective in significantly reducing dust emissions from the lake bed. 
Rejected measures include use of sprinklers, chemical dust 
suppressants, surface compaction, sand fences, and brush fences.
    In cooperation with LADWP, the District designed and issued a 
unique order to the City. 6 The order requires the City to 
implement 3 measures: shallow flooding, managed vegetation, and 
application of gravel cover. The order further provides that 
implementation will proceed in 2 increments, each divided into 3 
phases, and covering the period 1999 through 2006.
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    \6\ Great Basin Unified Air Pollution Control District Board 
Order #981116-01, November 16, 1998, adopted as part of Governing 
Board Resolution No. 98-05. The order and control measures are 
discussed in more detail below, in section I.F.
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    Although small scale tests have been performed, the plan's 
technically difficult dust controls have never been applied over an 
area the size of the Owens Lake project--a 35-square mile control area 
within the 110-square mile lake bed. 7 For this reason, the 
order provides that the District will periodically assess the actual 
effectiveness of the controls, and will revise the SIP by December 31, 
2003, to incorporate the knowledge gained by previous implementation of 
control measures, in order to ensure sufficient reductions to attain 
the NAAQS by 2006. EPA agrees with the District and the City that this 
empirical approach is appropriate in view of the area's challenging 
control strategies and unique emission reduction requirements.
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    \7\ The SIP control measures are discussed in detail in section 
I.F., below.
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    As discussed below, EPA proposes to approve this SIP as a 
critically important blueprint for clean air in one of the country's 
most difficult PM-10 nonattainment areas. Primary credit for this 
remarkable achievement is shared by the District and LADWP, and 
successful plan implementation will require that both agencies continue 
to work effectively together. However, the other participating members 
of the public and the State's air pollution professionals should also 
be commended for assisting in the identification and refinement of the 
control approaches included in the plan, and their continued 
involvement will be vital as the plan is carried forward and evolves in 
the future.

B. CAA Requirements

    The Federal CAA was substantially amended in 1990 to establish new 
planning requirements and attainment deadlines for the NAAQS. The most 
fundamental of these nonattainment area provisions applicable to Owens 
Valley is the requirement that the State submit a SIP demonstrating 
attainment of the PM-10 NAAQS. This demonstration must be based upon 
enforceable measures to achieve emission reductions leading to 
emissions at or below the level predicted to result in attainment of 
the NAAQS throughout the nonattainment area. The measures must meet the 
standard for Best Available Control Measures (BACM), and the measures 
must be implemented expeditiously and ensure attainment no later than 
the applicable CAA deadline.
    EPA has issued a ``General Preamble'' describing the Agency's 
preliminary views on how EPA intends to act on SIPs submitted under 
Title I of the Act. See 57 FR 13498 (April 16, 1992), 57 FR 18070 
(April 28, 1992). EPA later issued an Addendum to the General Preamble 
providing guidance on SIP requirements for serious PM-10 areas. 59 FR 
41998 (August 16, 1994). The reader should refer to these documents for 
a more detailed discussion of EPA's preliminary interpretations of 
Title I requirements. In this proposed rulemaking action, EPA applies 
these policies to the Owens Valley PM-10 SIP submittal, taking into 
consideration the specific factual issues presented.

C. Designation and Classification

    On the date of enactment of the 1990 CAA Amendments, PM-10 areas, 
including the Owens Valley Planning Area, meeting the qualifications of 
section 107(d)(4)(B) of the amended Act, were designated nonattainment 
by operation of law. See 56 FR 11101 (March 15, 1991). The boundaries 
of the Owens Valley nonattainment area (Hydrologic Unit #18090103) are 
codified at 40 CFR 81.305.
    Once an area is designated nonattainment, section 188 of the CAA 
outlines the process for classification of the area and establishes the 
area's attainment date. In accordance with section 188(a), at the time 
of designation, all PM-10 nonattainment areas, including Owens Valley, 
were initially classified as moderate by operation of law. Section 
188(b)(1) of the Act further provides that moderate areas can 
subsequently be reclassified as serious before the applicable moderate 
area attainment date if at any time EPA determines that the area cannot 
``practicably'' attain the PM-10 NAAQS by this attainment date.
    CARB submitted a moderate area PM-10 SIP for Owens Valley on 
January 9, 1992. Based on this submittal, EPA determined on January 8, 
1993, that Owens Valley could not practicably attain by the applicable 
attainment deadline for moderate areas (December 31, 1994, per section 
188(c)(1) of the Act), and reclassified Owens Valley as serious (58 FR 
3334). In accordance with section 189(b)(2) of the Act, the applicable 
deadline for submittal of a SIP for Owens Valley addressing the 
requirements for serious PM-10 nonattainment areas in section 189(b) 
and (c) of the Act is February 8, 1997--4 years after the effective 
date of the reclassification (58 FR 3340-1).

D. Adoption and Submittal of the 1998 SIP

    Because of controversy regarding appropriate control requirements, 
the plan was not adopted until November 16, 1998. Following adoption by 
the District, CARB also adopted the 1998 SIP and submitted it to EPA on 
December 10, 1998. On February 2, 1999, EPA deemed the submittal 
complete.8
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    \8\ EPA adopted the completeness criteria on February 16, 1990 
(55 FR 5830) and, pursuant to section 110(k)(1)(A) of the CAA, 
revised the criteria on August 26, 1991 (56 FR 42216).
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    Both the District and CARB satisfied applicable statutory and 
regulatory requirements for reasonable public notice and hearing prior 
to adoption of the plan. The District conducted numerous public 
workshops and properly noticed the public hearing at which the plan was 
adopted. The SIP submittal includes proof of publication for notices of 
the public hearing. Therefore, EPA proposes to approve the 1998 SIP as 
meeting the public notice and involvement requirements of section 
110(a)(1) of the CAA.

[[Page 34176]]

E. Emissions Inventories

    The plan includes 1995 baseline emissions inventories for peak 24-
hour and annual emissions in tons per day. The inventory covers the 
expected control area for the plan, the southern half of the 
nonattainment area, which includes all sources that have been found to 
contribute to PM-10 violations. Because future emissions are not 
expected to change significantly in this rural and relatively 
undeveloped area, the attainment year inventories are assumed to be 
identical to the 1995 inventories.
    The peak 24-hour PM-10 inventory includes 8,346 tons per day (tpd) 
from wind erosion on the exposed Owens dry lake bed; 516 tpd from off-
lake sources of lake bed dust; and 42 tpd from prescribed burning. The 
Owens Valley inventory has insignificant emissions from major source 
categories in typical PM-10 nonattainment areas, including reentrained 
dust from motor vehicles (0.15 tpd unpaved roads, 0.19 paved roads), 
residential wood burning (0.24 tpd), and industrial facilities (0.23 
tpd, plus a proposed soda ash project projected to emit 0.51 tpd). 
Secondary aerosols are also insignificant PM-10 sources in Owens 
Valley, and so the inventories are for primary particulate only.
    Where appropriate, the District used EPA emission factors 
(Compilation of Air Pollution Emissions Factors, AP-42, USEPA, 1985). 
The District relied on permitted emissions for the area's 4 industrial 
facilities. Finally, the District developed specific emission 
algorithms for wind erosion based on wind tunnel studies (1998 SIP, 
section 4-3). The plan provides adequate documentation of the wind 
erosion emission factor development and validation.
    EPA concludes that the emissions inventories are comprehensive, 
accurate, and current, and that they are consistent with EPA's 
guidance.9 EPA proposes to approve the emissions inventories 
as meeting the requirements of section 172(c)(3) of the CAA.
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    \9\ PM-10 Emission Inventory Requirements (EPA-450/2-93), USEPA 
1993.
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F. Control Measures

1. Description of Control Measures
    The plan includes 3 control measures, each of which is designed to 
reduce emissions from the Owens Lake bed. They are shallow flooding, 
managed vegetation, and gravel cover. The following is a brief summary 
of each of the measures, which are described at more length in Chapter 
5 of the 1998 SIP.
a. Shallow Flooding
    This control measure consists of releasing water along the upper 
edge of the Owens Lake bed and allowing it to spread and flow down-
gradient toward the center of the lake. To attain the required PM-10 
control efficiency, the District concludes that at least 75 percent of 
each square mile of the control area must be wetted to produce standing 
water or surface saturated soil, between September 15 and June 15 of 
each year. The District estimates that a maximum of 4 acre-feet of 
water is required annually to control PM-10 emissions from an acre of 
lake bed.
    To maximize project water use efficiency, flows to the control area 
will be precisely regulated so that only the exact amount of water is 
released to keep the soil wet. Although the quantity of excess water 
will be minimized through system operation, any water that does reach 
the lower end of the control area will be collected in berms keyed into 
lake bed sediments and pumped back to the outlets to be reused.
    Shallow flooding will require the City to construct a large-scale 
water transmission, distribution, and outlet infrastructure; electrical 
power lines; access roads; and water control berms. The City will take 
appropriate steps to minimize adverse environmental impacts during this 
construction and after flooding. The project will include a program to 
remove any salt cedar (Tamarix ramosissima) and other undesirable non-
native plant and grass species that invade wet playa areas. The City 
must also prevent disruption of shorebird breeding activities when 
water delivery is reduced on June 15 of each year. Finally, the City 
will design and implement mosquito abatement programs, including the 
erection of bat roosting structures, and will monitor the impact of any 
pesticide usage to ensure that mosquito control activities do not 
result in unacceptable rates of egg thinning and failure.
b. Managed Vegetation
    This control measure consists of creating a farm-like environment 
containing a mosaic of small (approximately 4 to 20 acre) confined 
fields constructed of saltgrass (Distichlis spicata) that are irrigated 
with shallow pulses of water. The City will need to carefully monitor 
release of water to leach soils to within a level suitable for 
saltgrass. Saltgrass will be the only plant species to be introduced to 
the fields. It is tolerant of relatively high soil salinity, spreads 
rapidly via rhizomes, and provides good protective cover year-round 
even when dead or dormant. Saltgrass stands can subsist with minimal 
amounts of applied water during the summer. Dust control effectiveness 
should remain undiminished, provided that adequate irrigation has 
stimulated plant growth and has delivered stored water in the rooting 
zone during the spring months. Biological, mechanical, and chemical 
control methods will be used to remove pest plants and noxious grasses.
    Program implementation will require construction of earthen 
infrastructure for water distribution, including ditches, berms, 
channels, and reservoirs that allow for level border irrigation 
strategies that leach and drain readily through the fractured structure 
of the soil. The drainage system will be designed and constructed to 
allow for mixing of fresh water and saline drain water to achieve an 
ideal irrigation salinity. This will serve to maintain a downward 
gradient of salts in the rooting column of the soil in order to prevent 
salt from the shallow water table from rising into the rooting zone by 
capillary action. The drainage system must also be managed to prevent 
the rise of the water table into the rooting zone. Finally, the project 
will involve construction of special areas for saturated evaporite 
deposits.
c. Gravel Cover
    A 4-inch layer of coarse gravel laid on the surface of the Owens 
Lake playa will prevent PM-10 emissions by: (1) preventing the 
formation of efflorescent evaporite salt crusts, because the large 
spaces between the gravel particles interfere with the capillary forces 
that transport the saline water to the surface where it evaporates and 
deposits salts; and (2) raising the threshold wind velocity required to 
lift the large gravel particles so that transport of the particles is 
not possible by wind speeds typical of the Owens Lake area.
    Gravel blankets can work effectively on essentially any type of 
soil surface. Under certain limited conditions of sandy soils combined 
with high groundwater levels, it may be possible for some of the gravel 
blanket to settle into lake bed soils and thereby lose effectiveness in 
controlling PM-10 emissions. To prevent the loss of any protective 
gravel material into lake bed soils, a permeable geotextile fabric may 
be placed between the soil and the gravel where necessary. This will 
prevent the loss of any gravel.
    Gravel areas must be protected from water- and wind-borne soil and 
dust. The gravel blanket will be the last control measure to be 
implemented in order to eliminate wind-borne depositions. Gravel areas 
will be

[[Page 34177]]

protected from flood deposits with flood control berms, drainage 
channels and desiltation and retention basins, which will ensure that 
the gravel blanket will remain an effective PM-10 control measure for 
many years.
    To attain the required PM-10 control efficiency, 100 percent of all 
areas designated for gravel must be covered with a layer of gravel 4 
inches thick. All gravel material shall be screened to a size greater 
than \3/8\-inch in diameter.
d. Additional Measures
    In addition to these three control measures, the City is authorized 
to implement one or more control measures of its choosing on 3.5 square 
miles of the lake bed in the ``Dirty Socks'' area, at the southern 
boundary of the lake and near State Highway 190. The controls placed in 
this area may be one of the 3 identified measures, modified versions of 
these measures, or other unidentified measures. The control measures 
placed in this area do not need to be approved by the District. 
However, if the City elects to apply controls in the Dirty Socks area, 
the City is responsible for assuring that the Dirty Socks control 
measures are integrated into an entire control strategy that meets the 
PM-10 NAAQS by December 31, 2006.
2. Implementation Schedule
    The proposed control strategy will be implemented in 2 increments. 
The first increment will take place between November 16, 1998, and 
December 31, 2003. This requires the implementation of control measures 
on 16.5 square miles of the Owens Lake bed, unless the District finds 
that attainment is achieved by placing controls on a smaller area. 
During this time the emphasis will be on controlling those portions of 
the lake bed that are most emissive in terms of the frequency and 
severity of emissions. The focus will be on improving control measure 
efficiencies and on identifying those remaining areas of the lake bed 
that will continue to contribute to PM-10 NAAQS violations, if any.
    The second increment will take place between January 1, 2004 and 
December 31, 2006. This will require implementation of any additional 
control measures necessary to provide for attainment of the PM-10 NAAQS 
by December 31, 2006.
    The District commits to revise the SIP in 2003 to incorporate new 
knowledge and provide for attainment of the PM-10 NAAQS by December 31, 
2006. If the District determines that additional or fewer controls are 
required to meet the NAAQS by December 31, 2006, the 2003 SIP will 
provide for implementation of the appropriate control measures for the 
final step of the control strategy.
3. BACM Requirement
    The Owens Valley serious area SIP must include control measures 
consistent with the requirements for Reasonably Available Control 
Measures (RACM), Reasonably Available Control Technology (RACT), BACM, 
and Best Available Control Technology (BACT). RACM and RACT are control 
technology requirements applicable to moderate areas. The requirements 
for RACT and BACT, which apply to stationary and area sources, are 
generally not applicable within the Owens Valley area, in which all PM-
10 sources except for wind erosion are de minimis. The 1998 SIP's BACM 
provision for wind erosion sources is more stringent than the RACM 
mandate.
    EPA defines BACM as ``the maximum degree of emissions reduction of 
PM-10 and PM-10 precursors from a source * * * which is determined on a 
case-by-case basis, taking into account energy, environmental, and 
economic impacts and other costs, to be achievable for such source 
through application of production processes and available methods, 
systems, and techniques for control of each such pollutant.'' General 
Preamble Addendum, 59 FR 42010 (August 16, 1994). EPA exempts from the 
BACM requirement de minimis source categories, which do not contribute 
significantly to nonattainment. 59 FR 42011. CAA section 189(b)(1)(B) 
requires that the plan contain provisions to assure that BACM for the 
control of PM-10 shall be implemented 4 years after the effective date 
of the reclassification, or by February 8, 1997.10
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    \10\ Because the statutory BACM implementation deadline has 
passed, the plan must assure that BACM will be implemented ``as soon 
as possible.'' Delaney v. EPA, 898 F.2d 687, 691 (9th Cir. 1990). 
EPA has interpreted this requirement to be ``as soon as 
practicable.'' 55 FR 36458, 36505 (September 9, 1990).
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    In the plan and in the appendices to the plan, the District has 
provided extensive documentation on both the control measures included 
in the plan and those rejected. The documentation quantifies the costs 
of construction, materials, operation, and maintenance, and examines 
other factors, including energy and environmental impacts. EPA agrees 
that adequate time must be allowed to carry out the control measures 
successfully, since the measures are uniquely vast in scale, materiel, 
and required construction activity. The District's order to the City 
establishes an aggressive, but phased, implementation schedule, which 
is shown to be as expeditious as practicable.
4. EPA Proposed Action on Control Measures
    EPA concludes that the plan demonstrates that:
    (a) Only wind erosion emissions from the lake bed cause or 
contribute to PM-10 violations in the area and, hence, applying BACM to 
other source categories would not contribute significantly to achieving 
the NAAQS as expeditiously as practicable;
    (b) The plan's 3 control measures for wind erosion are consistent 
with the BACM requirement in terms of the timing, degree, and extent of 
the control program; and
    (c) There is insufficient evidence, at this time, to support the 
economic and technological feasibility of any alternative or additional 
measures for the control of wind erosion emissions in Owens Valley, 
even assuming the high degree of control stringency associated with the 
BACM requirement.
    EPA therefore proposes to approve the control measures contained in 
the SIP under CAA section 110(k)(3), as meeting the requirements of CAA 
sections 110(a) and 189(b)(1)(B).

G. Reasonable Further Progress (RFP)

    The plan must also include measurable milestones which are to be 
achieved every 3 years and show RFP toward attainment by the applicable 
attainment deadline. The District order to the City includes 
enforceable schedules for annual implementation of the specified 
control measures, beginning with the completion, by December 31, 2001, 
of the phase 1 control of 10 square miles. The order requires control 
of an additional 3.5 square miles by 2002; 3 square miles by 2003; and 
2 square miles in each of the remaining 3 years through 2006.
    EPA proposes to approve this aggressive and enforceable annual 
schedule as meeting the RFP requirements of CAA section 189(c).

H. Contingency Measures

    The CAA requires that the SIP include contingency measures to be 
implemented if the area fails to meet progress requirements or to 
attain the NAAQS by the applicable deadline. As discussed above, the 
District commits to revise the SIP in 2003 to implement additional 
controls if necessary to attain the NAAQS by 2006. If in 2006 the 
District determines that the area will not attain by the end of that 
year, the District order requires the City to

[[Page 34178]]

implement controls on an additional 2 square miles of the Owens Lake 
bed each year. Implementation of this contingency measure is automatic, 
and requires no further action by the District or any other agency.
    EPA concludes that the plan satisfies the contingency requirements, 
and proposes to approve the SIP's contingency provisions under section 
172(c)(9).

I. Extension of the Attainment Deadline

    CAA section 188(e) allows states to apply for up to a 5-year 
extension of the serious area attainment deadline of December 31, 2001. 
In order to obtain the extension, there must be a showing that: (1) 
Attainment by 2001 would be impracticable, (2) the state complied with 
all requirements and commitments pertaining to the area in the 
implementation plan for the area, and (3) the state demonstrates that 
the plan for the area includes the most stringent measures that are 
included in the SIP of any state or are achieved in practice in any 
state, and can feasibly be implemented in the area.
    The 1998 SIP has demonstrated that the plan includes all feasible 
and effective control measures for wind erosion, and that the 
implementation schedule for the control measures is as expeditious as 
practicable, considering the massive projects that must be undertaken. 
EPA agrees that no other SIP contains measures and no other area 
implements measures for control of wind erosion that would be feasible 
and effective in the Owens Valley area. Finally, EPA believes that 
attainment could not feasibly be achieved before 2006. Therefore, EPA 
proposes to grant, under CAA section 188(e), a 5-year attainment date 
extension to December 31, 2006.

J. Attainment Demonstration

    The SIP must provide a detailed demonstration (including air 
quality modeling) that the specified control strategy will reduce PM-10 
emissions so that the standards will be attained as soon as practicable 
but no later than December 31, 2006, assuming final EPA approval of the 
attainment deadline extension. CAA section 189(b)(1)(A). EPA considers 
the area to be in attainment of the NAAQS if 24-hour concentrations are 
150 ug/m3 or less and the annual arithmetic mean is 50 ug/m3 or less. 
See footnote 1. The attainment demonstration in the Owens Valley area 
focuses on the 24-hour NAAQS, since the area does not violate the 
annual NAAQS. The 3-year annual arithmetic mean for the most recent 
period (1996-1998) is 37.0 ug/m3.11
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    \11\ Preliminary information from EPA's Aerometric Information 
Retrieval System (AIRS). The 1998 SIP's wind erosion control 
measures should be effective in reducing not only 24-hour PM-10 
concentrations but also annual concentrations, since primary and 
secondary wind erosion is 99 percent of the anthropogenic PM-10 
emissions on an annual basis, and 99.5 percent on a 24-hour basis.
---------------------------------------------------------------------------

    Air quality modeling techniques were applied to assess control 
scenarios developed by the District to reduce PM-10 concentrations and 
bring the airshed into attainment. The specific computer model used by 
the District is called the Industrial Source Complex Short-Term Version 
3 model or ISCST3. ISCST3 is the EPA recommended dispersion model for 
regulatory assessment of fugitive dust sources (40 CFR part 51, 
appendix W). The modeling analysis itself comports with existing 
modeling guidelines.12
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    \12\ PM-10 SIP Development Guideline (USEPA 450/2-86-001, 6/87); 
Guideline on Air Quality Models (Revised); Memorandum from Joseph 
Tikvart and Robert Bauman dated July 5, 1990.
---------------------------------------------------------------------------

    A performance evaluation was also conducted to determine the 
uncertainty and reliability of these modeling methods based on a 
comparison of model predictions with ambient PM-10 measurements. 
Chapter 6 of the 1998 SIP contains a detailed description of the air 
quality modeling used for the Owens Valley.
    The objectives of the air quality modeling are:
    (1) To conduct the dispersion modeling in accordance with the 
regulatory guidance for PM-10 SIPs using EPA recommended modeling tools 
and procedures.
    (2) To perform an evaluation of the proposed dispersion modeling 
techniques using 2 years of ambient data and focus the evaluation on 
the higher observed 24-hour PM-10 concentrations. The performance 
evaluation was used to assess model uncertainty and aid in the 
selection of several aspects of the modeling procedures.
    (3) To assess and refine control strategies until the modeling 
approach demonstrates attainment of the PM-10 NAAQS.
    The air quality model shows that the proposed set of control 
strategies would reduce ambient PM-10 impacts at shoreline almost 97 
percent. After implementation of the control strategies, the number of 
PM-10 exceedances at the shoreline will be less than one per year, 
which complies with the PM-10 standard.
    To achieve the emission reductions necessary to meet the PM-10 
standard, the controlled emission rate must be 1.25 metric tons of PM-
10 per square kilometer per day (approximately 1.4 tons per 250 acres 
per day). This is based on the emissions for the design day meteorology 
on March 12, 1994. The 3 control measures (shallow flooding, managed 
vegetation and gravel) each would result in emissions below this 
controlled emission rate.
    EPA concludes that the air quality modeling and attainment 
demonstration contained in the 1998 SIP are consistent with existing 
EPA guidelines. EPA proposes to approve the attainment demonstration 
under CAA section 189(b)(1)(A).

II. Summary of EPA's Proposed Action

    EPA is proposing to approve the serious area PM-10 SIP submitted by 
the State of California for the Owens Valley PM-10 nonattainment area. 
Specifically, EPA is proposing to approve the 1998 SIP with respect to 
the CAA requirements for public notice and involvement under section 
110(a)(1); emissions inventories under section 172(c)(3); control 
measures under section 110(k)(3), as meeting the requirements of 
sections 110(a) and 189(b)(1)(B); RFP and rate-of-progress milestones 
under section 189(c); contingency measure(s) under section 172(c)(9); 
and demonstration of attainment under section 189(b)(1)(A). EPA is also 
proposing to approve the State's request for an extension of the 
attainment date from December 31, 2001 to December 31, 2006, under CAA 
section 188(e).

III. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order (E.O.) 12866, Regulatory 
Planning and Review.

B. Executive Order 12875

    Under Executive Order 12875, Enhancing the Intergovernmental 
Partnership, EPA may not issue a regulation that is not required by 
statute and that creates a mandate upon a State, local or tribal 
government, unless the Federal government provides the funds necessary 
to pay the direct compliance costs incurred by those governments, or 
EPA consults with those governments. If EPA complies by consulting, 
Executive Order 12875 requires EPA to provide to the Office of 
Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected State, local and tribal 
governments, the nature of their concerns, copies of any written

[[Page 34179]]

communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 12875 
requires EPA to develop an effective process permitting elected 
officials and other representatives of State, local and tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory proposals containing significant unfunded mandates.'' 
Today's rule does not create a mandate on State, local or tribal 
governments. The rule does not impose any enforceable duties on these 
entities. Accordingly, the requirements of section 1(a) of E.O. 12875 
do not apply to this rule.

C. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under E.O. 
12866, and (2) concerns an environmental health or safety risk that EPA 
has reason to believe may have a disproportionate effect on children. 
If the regulatory action meets both criteria, the Agency must evaluate 
the environmental health or safety effects of the planned rule on 
children, and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency. This rule is not subject to E.O. 13045 because it does 
not involve decisions intended to mitigate environmental health or 
safety risks.

D. Executive Order 13084

    Under Executive Order 13084, Consultation and Coordination with 
Indian Tribal Governments, EPA may not issue a regulation that is not 
required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.'' Today's rule 
does not significantly or uniquely affect the communities of Indian 
tribal governments. Accordingly, the requirements of section 3(b) of 
E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. This final rule will not have a significant impact on a 
substantial number of small entities because SIP approvals under 
section 110 and subchapter I, part D of the Clean Air Act do not create 
any new requirements but simply approve requirements that the State is 
already imposing. Therefore, because the Federal SIP approval does not 
create any new requirements, I certify that this action will not have a 
significant economic impact on a substantial number of small entities. 
Moreover, due to the nature of the Federal-State relationship under the 
Clean Air Act, preparation of flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
Clean Air Act forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
annual costs to State, local, or tribal governments in the aggregate; 
or to private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated annual costs of 
$100 million or more to either State, local, or tribal governments in 
the aggregate, or to the private sector. This Federal action approves 
pre-existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Oxides of nitrogen, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: June 18, 1999.
Felicia Marcus,
Regional Administrator, Region IX.
[FR Doc. 99-16227 Filed 6-24-99; 8:45 am]
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